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THE 


AUTHENTICATION, 
ACKNOWLEDGMENT  AND  PROOF 


OF 


WRITTEN  INSTRUMENTS 

UNDER  THE  VARIOUS  LAWS  WHICH  HAVE  BEEN  IN  FORCE 


TEXAS 


HEU    EARLIEST    HISTORY 


THE    PRESENT    TIME 


BY 

RUSSELL   WHITELAW   HOUK 

Of  the  Houston  Bar 


SAN  FRANCISCO 
BANCROFT-WHITNEY    COMPANY 

Law  Publishera  and  Law  Booksellers 
1905 


T 

1905 


Copyright,  1905, 

BY 

EUSSELL  WHITELAW  HOUK. 


San  Francisco: 

Thb  Filmer  Brothers  Electrotype  Company, 

Typographers  and  Stereotypers. 


u. 

h 


TO  MY  MOTHER. 


i;: 


PREFACE. 


While  so  many  books  are  being  forced  upon  tlie  pro- 
fession, an  apology  may  be  due  it  for  offering  another. 
The  excuse  is  that  we  believed  such  a  work  would  save 
much  labor,  and  no  such  had  been  published. 

As  the  validity  of  authentication,  under  the  Mexican 
laws  and  acknowledgments,  etc.,  under  Texas  laws  is 
tested  by  the  laws  in  force  at  the  time  they  are  made, 
and  as  they  have  been  constantly  changed,  it  has  been 
a  difftcult  task  for  attorneys  to  determine  what  laws 
were  in  force,  what  oflflcers  were  authorized,  what  cer- 
tificates were  required,  at  a  given  time,  and  what  de- 
fects have  been  validated,  etc.  For  instance,  there  are 
in  this  state  about  ninety  different  laws  affecting  the 
authority  of  ofiflcers  to  take  acknowledgments,  etc.; 
about  sixty  different  laws  affecting  the  manner  of  tak- 
ing and  cer-tifying  to  acknowledgments  and  proof ;  about 
thirty-two  validating  statutes,  etc.,  few  of  same  being 
incorporated  in  the  Revised  Statutes,  and  the  others 
scattered  through  the  session  laws  of  the  different  legis- 
latures, without  any  general  index,  during  which  time 
many  different  constitutions  have  been  in  force  and 
many  changes  of  government  have  taken  place. 

The  intention  has  been  to  afford  a  ready  reference 
to  the  laws  in  force  at  any  desired  time,  on  any  of  the 
subjects  treated,  with  the  decisions  affecting  same, 
pointing  out  Avhat  laws  were  in  force  at  any  desired 
time,  when  they  were  repealed,  if  ever,  and  what  laws 
are  now  in  force.  A\'e  would  not  ask  more  of  the  bar 
than  that  it  show  tlie  same  magnanimity  in  regard  to  the 
errors  and  defects  in  this  work  that  it  has  so  often 
shown  toward  our  judges  when  they  have  erred. 

R.  W.  HOUK. 
Houston,  Texas,  December,   1005. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

CONVEYANCES,  AUTHENTICATION  AND  EEGISTEATTON 
PRIOR  TO  THE  REGISTRATION  ACT  OF  DECEMBER  20, 
1836. 

§     1.     Historical   outline. 

§     2.     How  sale  may  be  effected  under  Spanish  and  Mexican  laws. 

Verbal  sale  of  real  estate  valid. 

Form  of  contracts. 

Notice  and  priority  of  purchasers  under  Spanish  and  Mexi- 
can laws. 
§     3.     Method  of  authentication  and  record  prior  to  1836. 

(a)  By  authorized  ojfficers. 

(b)  Spanish  language  to   be  used. 

(c)  Stamped  paper  to  be  used. 

(d)  Seals,  signets,  rubrics  and  notarial  flourishes. 

(e)  Signatures,  names,  residences,  date,  venue,  terms,  etc. 

(f)  Assisting  witnesses  necessary  to  authentication,  when. 

(g)  Alterations,  blanks,  interlineations,  forgeries,  etc. 
(h)     Presumptions— Proof— Antiquity. 

(i)      Method  for  Austin  colony. 

(j)      Custom. 
§     4.     Necessity,  materiality  and  effect  of  authentication. 
§     5.     OflScers   authorized    to   authenticate. 
§     6.     Notaries  public. 

§§  7-21.     Judges  and  decrees  relating  to  same. 
§  22.     Authority  of  officers  immaterial,  when. 


CHAPTER  II. 

THE  EFFECT  OF  THE  REGISTRATION  ACT  OF  DECEMBER  20, 
1836,  AND  SUBSEQUENT  ACTS  ON  TITLES  AND  DEEDS 
EXECUTED  PRIOR  THERETO. 

§  23.     Effect  of  said  act  and  necessity  of  registration. 
§  24.     Judges  to  deposit  records  with  county  clerk. 
§  25.  Protocols  and  copies  thereof. 

§  25a.  Does  this  act  apply  to  protocols  of  other  ofiicers  also? 

§  26.  Admissible  in  evidence. 

(vii) 


viii  TABLE  OF  CONTENTS. 

§  27.  Proceedings  of  ayuntamiento  should  not  be  delivered 

to  county  clerk,  nor  protocols  to  the  land  commis- 
sioner. 

g  28.  Protocol  might  be  proved  and  recorded. 

§  29.  Necessity  of  recording  protocols. 

§  30.  Certified  copies  by  county  clerks  admissible. 

§  31.  Certified  copies  by  general  land  office  admissible. 

§  32.  Titles  must   be  recorded. 

§  33.  Testimonios. 

§  34.  Idem. 

§  35.  Public    and    authentic    instruments. 

§  36.  Private  instruments. 

§  37.  Copies  of  instruments  in  archives  to  be  recorded. 

§  38.  Certificate  of  legal  custodian  sufficient  proof. 

§  39.  Copies,  admissible  in  evidence  when. 

§  40.  Idem. 

§  41.  Archives. 

§  42.  County  clerks  to  be  recorders — Acknowledgments  and  proof. 

§  43.  Two    subscribing   witnesses   required,   when. 

§  44.  Above  provisions  obscure. 

§  45.  Acknowledgment  by  officer  sufficient. 

§  46,  Testimonio  recorded  on  proof  of  handwriting. 

§  47.  Where  record  is  made,  it  is  presumed  proof  was  made. 

§  48.  Proof  must  be  indorsed  on  instrument,  when. 

§  49.  Chief  justices  ex-officio  notaries  public. 

§  50.  No  seal  necessary  where  acknowledgment  taken  by  county 
clerk,  when. 


CHAPTER  III. 

ACKNOWLEDGMENT  AND  PROOF. 

§  51.  Nature. 

§  53.  Object. 

§  54.  Origin  and  necessity. 

§  55.  Not  necessary  between  the  parties,  when. 

§  56.  Nor    in   case    of    assignment. 

§  57.  Not  necessary  in  case  of  a  railroad  company,  when. 

§  58.  Chattel  mortgage  need  not  be  acknowledged  when. 

§  59.  Acknowledgment   essential   to   married   woman's   deed. 

§  60.  Wife  abandoned  by  husband  or  he  is  insane. 

§  61.  Married  woman's  oral  agreement. 

§  62,  Necessity  in  case  of  ancient  instruments. 

§  63.  Effect. 

§  64.  Execution  not  proven  by. 

§  65.  Wife's  defective  acknowledgment  harmless  on  husband's 

deed. 

§  66.  Notice. 

§  67.  Acknowledgment,   how  shown   or   proved. 


TABLE   OF  CONTEXTS.  ix 

CHAPTER  IV. 

HOW   MADE   AND   TAKEN. 

§  68.  Under  what  law. 

§  69.  Prior  to  December  20,  1836. 

§§     70-82.  Act  of  December  20,  1836. 

§  70.  Chief  justices  ex-officio  notaries. 

§  71.  Acknowledgment  or  proof  by  one  witness. 

§   72.  Time  in  which  record  was  to  be  made. 

§  73.  Acknowledgment  or  proof  by  two  witnesses. 

§  74.  No  form  prescribed. 

§§     75-77.  What    acknowledgment     and   proof    sufficient   under 

above  law. 
§  78.  Acknowledgment    and    proof. 

§  79.  What  sufficient. 

§  80.  No  seal  was  necessary  when. 

§  81.  Not  necessary  for  certificate  to  show  grantor  known 

to  officer. 
§  82.  Substantial    compliance    necessary. 

§  83.  Act  of  January  19,  1839,  required  certificate. 

§  84.  Act  of  February  5,  1840. 
§  85.  Two  justices  of  the  peace. 

§  86.  Eepealed  when. 

g§     87-88.  Act   of  February  5,  1841. 

§  87.  Validates   want   of   authority   of   certain   officers. 

§  88.  Acknowledgment  and  proof  certified. 

§§     89-90.  Act   of   May   8,    1846 — Commissioners   of    deeds. 

§§     91-94.  Act  of  May  12,  1846. 
§§     91-92.  Acknowledgment,  how  taken. 

§  93.  If  grantor  or  witness  unknown,  proof  made. 

§  94.  Substantial  compliance  only  required. 

§  95.  Acts   of   April   6,   1861,   and  January   14,    1862— Seal   of 

railway  company  sufficient  authentication. 

§  96.  Act   of   March    6,   1863— Handwriting. 

§  97.  Acts  of  November  13,  1866,  August  8,  1870,  August  13, 

1870,  May  6,  1871— Seal. 

§  98.  Constitution  of  1875— Errors. 

§§  99-104.  Kevised  Statutes  of  1879  and  1895. 

§     99.  Single    acknowledgment,    how    made. 

§  100.  Identity. 

§  101.  Certificate   of   officer. 

§  102.  Form. 

§  103.  Of  married  women,  how  taken. 

§  104.  Form  of  certificate  for  married  women. 

§  105.  How  made — Continued. 


TABLE  OF  CONTENTS. 

§   106.     Through  tlio  tolcplioue. 

§  107.     Final    title— Revised    Statutes    of    1S79    and    1895-Con- 

struction  of  statutes. 
§  lOS.     Statutes  not  incorporated  in  Eevised  Statutes  repealed. 
§  109.     Validating  statutes  not   repealed. 
§  110.     Statutes  construed   as  continuation. 

By  corporations,  see  post,  §  553.     By  railway  companies, 

see  post,  §  558. 
Proof  by  subscribing  witnesses,  see  chapter  12. 


CHAPTER  V. 

PLACE  OF  TAKING  ACKNOWLEDGMENTS. 

§  111.     General  rule. 

§  112.  County  clerks  not  authorized  where  deed  is  to  be  recorded 
without  their  county,  when. 

§  113.  Chief  justices  of  the  county  courts  may  not  have  been  au- 
thorized where  deed  was  to  be  recorded  without  their 
counties,  wlien. 

§  114.     Presumption    is    that    officer    acted    within    jurisdiction. 

§  115.     Must  be  taken  in  compliance  with  laws  of  Texas. 


CHAPTER  VI. 

TIME  OF  TAKING  ACKNOWLEDGMENT. 

§  116.  Generally. 

§  117.  Incomplete   deed. 

§  119.  Acknowledgment   relates   back   to    execution   of    deed,   when. 

§  120.  Married  woman's  acknowledgment  relates  back,  when. 

§  121.  Husband  and  wife  may  acknowledge  deeds  at  different  times. 

§  122.  On  Sunday  or  legal  holiday. 

§  123.  Acknowledgment   invalid   at   time  made. 


CHAPTER  VII. 

CERTIFICATE  OF  ACKNOWLEDGMENT. 

A.     CERTIFICATE    GENERALLY. 

§  124.  Place  of  certificate. 

§  125.  Language. 

126-127.  Time  of  making  certificate. 

§  128.  On  Sunday  or  legal  holiday  valid. 


TABLE   OF  CONTENTS.  xi 

§  129.     Adopting   form   invalid   at    time   used. 

§  130.     Venue. 

§  131.     Date. 

§  132,     Signature. 

§  133.     Official    character. 

§  134.  Certificate  not   showing   official  character  aided  by 

record. 

§  13.5.  Not  shown  by  reference  to  record,  but  by  reference 

to   deed. 

§  135a.  Official  character  cannot  be  shown  by  extrinsic  evi- 

dence. 

§  136.  Official  character  shown  by  initials  and  caption  of 

certificate  and  by  seal. 

B.     MUST  CERTIFY   WHAT. 

§§  137-138.  Generally. 

§  139.  Grantor  known   or  proved  to  officer. 

§  140.  Known    by    introduction    sufficient. 

§  14:1.  Omission  of  "known  to  me"  fatal. 

§§  142-145.  Acquaintance  sufficiently  shown. 

§  146.  "Proved  to  me  on  oath  of"  surplusage. 

§  147.  Identity  of  grantor  and  person  acknowledging  deed  must 

appear. 

§   148.  Omission  of  grantor's  name, 

§  149.  Variance  in  names. 

§  150.  Parol    evidence    to    show   identity. 

§  151.  Variance  immaterial  when. 

§  152.  Middle  initial  immaterial. 

§  153.  Omission  of  "to  be  the  person,"  etc. 

§  154.  Acknowledged  execution  to  officer. 

§   155.  Casual  admission  in  officer's  presence  insufficient, 

§  156.  Sufficiently  shown. 

C.     IRREGULAR  CERTIFICATION. 

§§  157-160.  Sufficient   certification,   though   irregular. 

§  161.  Clerical  errors  not  fatal. 

§  162.  "The"    instead    of    "they." 

§  163.  "Contract"  for  "retract"  and  other  mistakes. 

§  164.  Insufficient   certification — "The  within  instrument   duly 
proved"    insufficient, 

§  165.  "He"  for  "they"   defective. 

§  166,  Omission  of  "they"  fatal. 

§  167.  Surplusage. 

§  168,  Unnecessary    words. 

§  169,  Uncanceled  words  in  printed  certificate, 

§  170,  Name   out   of   place, 

§§  171-173.  Errors  and   omissions. 


xii  TATU^E  OF  CONTENTS. 

D.     PAKOL   EVIDENCE. 

§  174.  To  aid  certificate  not  admissible,  when. 

§  176.  Admissible,   when. 

§§  177-179.  To   correct ,  imperfect   certificate  of  valid  acknowl- 

edgment.   • 

§  ISO.  Limitation. 

§  181.  Where    acknowledgment    itself    is   defective,   parol 

evidence   inadmissible. 

§  182.  Parol  evidence — Inadmissible,   when. 

§  183.  Want  of  capacity  in  oflScer  cannot  be  shown. 

§  184.  Parol    evidence    to    impeach    certificate    admissible, 

when— May   show   no   acknowledgment   made. 

§  185.  Where  purchaser  is  chargeable    with  notice,  etc. 

§§  186-187.  Burden   of  proof— Where   seeking  to   defeat  certifi- 

cate. 

§  188.  Burden  of  proof   in   case  of  equitable  titles. 

§  189.  Burden  of  proof  in  case  of  legal  titles. 

§  190.  Secondary  evidence   admissible  when. 

§  191.  Amendment  of  certificate — By  officer. 

E.  ^EETIFICATE  AS  EVIDENCE. 

§§  194-195.  Not   evidence   of   execution   of   deed. 

§  196.  Admissible   to   prove   protest. 

§  197.  Validates  the   deed. 

§  198.  Protocols  and  copies  admissible  on  certificate,  when. 

•  §  199.  Copies  of  archives  admissible. 

§  200.  Copies  from  foreign   jurisdictions. 

§  201.  After  act  of  December  20,  1836,  proof  of  execution 

required. 
§§  202-203.  Copies    filed    prior    to    February,    1837,    admissible 

when. 
§  204.  Copy   of   deed   not   properly   acknowledged   not   ad- 

missible as  ancient  instrument. 
§  205.  Certificate    of    acknowledgment    proven    by    second- 

ary  evidence. 

F.     CEETIFICATE  OF  MAGISTRACY  AND  CONFORMITY. 

§  206.  Generally. 

§  207.  Required  in   Texas,  when. 

§  208.  Remained  in  force  how  long. 

§  209.  Not    required    thereafter. 

6.     CERTIFICATE  MUST  BE  IN  COMPLIANCE  WITH  LAWS  OF 

TEXAS. 

§  210.  Foreign    oflScer    must    be    authorized    by    laws    of 

Texas. 


TABLE  OF  CONTENTS.  xui 

K.     CONCLUSIVENESS    OF   CERTIFICATE    OF  ACKNOWLEDG- 
MENT. 

§  211.  Conclusive    when. 

§  212.  Conclusive  as  to  capacity  of  officer,  etc. 

§  213.  Not  where  grantor  never  attempted  to  -acknowledge 

it. 
§  214.  Nor   unless    grantee    is    an    innocent    purchaser   for 

value. 
§  215.  Presumptions. 

L     CERTIFICATE    AS    NOTICE. 
§  216.  Notice. 

J.     FORM  AND   REQUIREMENTS  OF   CERTIFICATE. 

§  217.  Must  comply  with  law  in  force  at  time  certificate 

is   made. 
§  218.  A  substantial  compliance  with  statute  is  all  that  is 

required. 

K.     FORM    AND    REQUIREMENTS    UNDER    THE    DIFFERENT 

STATUTES. 

§  219.     Prior  to   act   of  December,   1836. 

§  220.     Act  of  December  20,  1836. 

§  221.  Certificate   required   when. 

§  222.  Certificates   by   county   clerks   required   when. 

§  223.  Acknowledgment   of  signature   of  officer  sufficient. 

§  224.  Proof  of  signature  of  single  witness  sufficient. 

§  225.  No  seal  necessary,  when. 

§  226.  When  grantor  is  known  to  officer,  it  is  not  necessary  to 

be  certified. 
§  227.     Act    of   January   19,    1839. 
§  228.     Act   of    February   5,    1840. 
§  229.     Act  of  February  5,  1841. 
§  230.     Act  of  May  8,  1846. 
§  232.     Act  of  May  12,  1846. 
§  233.     The  acts  of   April  6,   1861,  January  14,  1862,   November   13, 

1866,   and   May   %   1871. 
§  234.     Act   of   March   6,   1863. 
§  235.     Acts  of  November  13,  1866,  August  8,  1870,  August  13,  1870, 

and   May    6,    1871. 
§  236.     Constitution  of  1875— Errors. 
§  237.     Revised   Statutes   of   1879   and   1895— Identity. 


TABLE  OF  CONTENTS. 


CHAPTER  VIII. 

ACKNOWLEDGMENT      AND      CONVEYANCE      BY      MAEKIED 
WOMEN   PRICE   TO   THE    ACT    OF   FEBRUARY   3,    1841. 

§  238.     Not  required  as  at   present. 

§  239.  Consent  of  husband  required  but  not  separate  acknowledg- 
ment. 

§  240.  Wife's  acknowledgment  taken  in  same  manner  as  single 
person 's. 

§  241.  After  adoption  of  common  law,  no  provision  made  until 
1841. 

§  242.     Convey   her   personal   property   without    acknowledgment. 


CHAPTER  IX. 

CONVEYANCES   BY   MARRIED   WOMEN   AFTER  FEBRUARY   3, 

1841. 

§  243.  Wife's   conveyance  must  be   separately  acknowledged. 

§  244.  By  agent  or  attorney. 

§  245.  Executory  contract  for  sale  of  homestead  not  binding. 

§  246.  Executory  contract  for  sale  of  wife's  other  property  binding. 


CHAPTER  X. 

ACKNOWLEDGMENT  BY  MARRIED  WOMEN  AFTER  THE  ACT 
OF  FEBRUARY   3,   1841. 

§  247.  The  acknowledgment,  not  the  signature,  is  the  deed  of 
married  women. 

§  248.  Held  that  deed  without  proper  certificate  of  acknowl- 
edgment is  void. 

§  249.  Deed  properly  acknowledged  but  defectively  certified, 
not  void. 

§  250.     First,  it  might  be  reacknowledged. 

§  251.     Second,  waived  by  estoppel. 

§  252.     Third,  validated  by  statute. 

§  253.     Fourth,   corrected   by   action. 

§  254.     Idem. 

§  255.  Acknowledgment  of  wife  properly  taken  but  defectively 
certified  void  as  to  vested  rights. 

§  256.  Acknowledgment  improperly  taken  but  properly  certi- 
fied valid  when. 


TABLE   OF  CONTENTS.  xv 

§§  257-269.     Eeqnirements   of  valid   aeknowledgnieut. 
§§  257-258.  Privj'  examination  essential. 

§  259.  Prior  to  act  of  February  3,  1841. 

§  260.  How  corrected. 

§§  261-262.  Explanation   essential. 

§  263.  By  interpreter  valid. 

§  264.  If  she  knew  contents. 

§  265.  Explanation    where    reference    is    made    to    an- 

other instrument. 
§  266.  Free  from  compulsion. 

§  267.  Eight  to  retract. 

§  268.  Grantor  known  or  proved  to  officer. 

§  269.  Extent  of  acquaintance. 

§  270.     May   be   taken   at    different   times— One    may   be    valid 

though  other  invalid. 
§  271.     On  legal  holidays  valid. 

§  272.     Acknowledgment    of    married    woman 's    receipt    not    re- 
quired. 
§  273.     Abandoned  by  husband  or  he  is  insane,  she  may  convey 

as  single  person. 
§  273a.  Schedule  of  married  woman's  separate  property. 
(See  ''Acknowledgment  and  Proof,"  chapter  3.) 


CHAPTER  XI. 

CERTIFICATION      OF      ACKNOWLEDGMENTS      OF     MARRIED 

WOMEN. 

A.     GENERAL   TEXT. 

§  274.  No  separate  acknowledgment  required  prior  to  1841. 

§  275.  Certificate  of  acknowledgment  essential  and  conclusive. 

§  276.  Conclusive  if  grantee  innocent  purchaser  for  value. 

§  277.  Not  conclusive  if   grantee  is  chargeable  with  notice. 

§  278.  Not  conclusive  if  grantor  did  not  acknowledge. 

§  279.  Defective  certificate   does   not   render   deed   void   when. 

§  280.  Wife's  deed  not  complete  without  certificate  of  aclcnowledg- 

ment. 

g  281.  Held  wife's  deed  void  until  certificate  corrected. 

§  282.  Amendment. 

§  283.  Certificate  proven,  how. 

§  284.  Parol  evidence, 

§  286.  Form  of  certificate  of  married  woman's  acknowledgment. 

§  287.  Substantial  compliance  with  statute  necessary. 

§  288.  May  be  invalid  as  to  husband  but  valid  as  to  wife. 

§  289.  Must  certify  what. 


^,.i  TABLE  OF  CONTENTS. 

§  290.  Separate  and  privy  examination. 

§  291.  <' Separate"  instead  of  "privily." 

§  292.  "Apart  from  her  husband"  sufficient. 

§  293.  Explanation. 

§  294^  Omission  of  "explained  to  her"  fatal. 

§  295.  Wife  otherwise  knew  contents  of  deed. 

§  296.  "Explained"  equivalent  to  "fully  explained." 

I  297.  Certificate   not    defective   for   failing   to    show   that 

deed  was  shown  to  wife. 
§  298.  Free  from  compulsion. 

§  299.  "Free"  instead  of  "willingly." 

§  300.  "Eetract." 

§  301.  "Known  to  me." 

§  302.  Acknowledgment  must  be  personal  to  officer. 

§  304.  Official  character  must  be  shown. 

§  305.  Official  seal. 

§  306.  Signature  of  officer. 

§  307.  Certain  omissions  immaterial. 

§  308.  Identity  of  grantor  and  person  acknowledging  deed. 

§  309.  Omissions  and  errors. 
§  310.  Error  clearly  clerical  not  fatal. 

§  311.  Material  omissions  fatal. 

§  312.  Equivalent   expressions. 

§  313.  Estoppel  and  equities. 
§  314.  In  case  of  partition. 

§  315.  Where  wife's  land  is  released. 

§  316.  Where  fraud  is  practiced  by  wife. 

§  317.  Not  estopped  simply  because  she  received  the  benefits. 

§  318.  Defective   certificate   of   valid   acknowledgment. 

§  319.  Conclusiveness  of  certificate  of  wife's  acknowledgment. 
§  320.  Same  strictness  does  not  apply  to  wife's  as  to  husband's. 

§  321.  Cannot  show  want  of  capacity  in  officer,  etc. 

§  322.  Officer    cannot    explain    certificate,    but    may    prove    ac- 

knowledgment properly  taken. 
§  323.  May  be  avoided  by  her  when. 

§  324.  Presumption  is  that  certificate  recites  the  facts. 


B.     STATUTOEY    PROVISIONS    CONCERNING   ACKNOWLEDG- 
MENTS OF  MARRIED  WOMEN. 

§  325.     Act  of  February  3,  1841 — Requirements  and  form. 

§  326.  Idem— Annotated. 

§  327.  Act  of  February  5,  1841— Validates  want  of  authority  in  cer- 
tain officers. 

§  328.  Act  of  April  29,  1846— Acknowledgment  of  schedule  of  wife's 
property. 


TABLE   OF  CONTENTS.  xvii 

§  329.     Act  of  April  30,  1846— Eequirements  and  form. 
§  330.  Idem— Annotated. 

§  331.  How  taken  -without  the  state. 

§  332.  Above  law  applies  to  what  property. 

§  333.  Eepeals  other  laws. 

§  334.     Act  of  May  8,  1846— Commissioners  of  deeds. 
§  335.     Act  of  May  13,  1846— Notaries  authorized. 
§  336.     Act  of  May  12,  1846— Form  and  requirements  not   affected. 
§  337.     Act  of  March  16,  1848— Form  and  requirements  not  affected. 
§  338.     Act   of  December   18,   1849— Form  and  requirements  not   af- 
fected. 
§  339.     Act  of  February  9,  1856— Validates. 
§  340.     Act  of  February  9,  1860— Validates. 
§  341.     Act  of  August  13,  1870— Validates. 
§  342.     Act  of  April  27,  1874— Validates. 

§  343,     Act  of  May  25,  1876 — ^Form  and  requirements  not  affected. 
§  344.     Act  of  July  28,  1876— Validates. 
§  345.     Eevised  Statutes  of  1879  and  1895— Eequirements  of  wife's 

acknowledgment. 
§  346.  Husband  must  join  wife  in  her  conveyance. 

§  347.  Conveyance  of  homestead  must  be  acknowledged  by  wife. 

§  348.  Form  of  certificate  of  wife's  acknowledgment. 

§  348a.  Act  of  March  26,  1897— Conveyance  of  homestead. 
§  348b.  Conveyance  of  wife's  separate  property. 

For  officers  authorized,  see  chapters  20  to  27. 

For  certificate  prior  to  December  20,  1836,  see  ante,  chapter  1. 


CHAPTER  XII. 

FEOOF    OF    INSTEUMENTS    BY    WITNESSES. 

A.     PEOOF    AND    WITNESSES    GENEEALLY. 

§  349.     Proof  made  under  what  law. 

§  350.     Necessity  of  subscribing  witnesses  under   Spanish  law  prior 

to  1836. 
§  351.  Conveyance   not  full  proof  unless  witnessed. 

§  352.  Witnessed  by  notaries. 

§  353.     Under  colonization  laws,  title  not  witnessed  must  be  proved. 
§  354.     Necessity   of   subscribing   witnesses   subsequent   to   1836. 
§  355.  Married  woman's  deed  cannot  be  proved  by  subscribing 

witnesses   when. 
§  356.  By   subscribing  witnesses  not   required   in   all   cases. 

§  357.     Act   of   December   20,   1836— How   made   under— Presumption 

as  to  proof. 
§  358.  How  far  repealed. 

§  359.     How   proved   under   subsequent   statutes. 


TABLE  OF  CONTENTS. 


B.  HOW  PROVED  GENERALLY. 

§  360.     Judge  attesting  is   subscribing  witness  when. 

§  361.  Acknowledgment  of  officer's  signature  to  certificate  suflEieient 
proof. 

§  362.  Officer  not  competent  without  accounting  for  absence  of  wit- 
ness. 

§  363.     Subscribing  witness  must  be  produced  if  possible. 

§  364.     Sole   subscribing  witness   sufficient   when. 

§  365.     Where  witness  signs  by  making  his  mark. 

§  366.  Certificate  that  instrument  was  "duly  proven  before  me" 
insufficient. 

§  367.  Necessary  to  state  that  w'itness  signed  at  request  of  grantor 
when. 

§  368.  Signed  at  request  of— Rule  at  present  time. 

§  369.     Not  necessary  to  show  witness'  means  of  knowledge. 

§  370.     Means  of  knowledge  stated. 

§  371.  Must  show  witness  saw  grantor  sign  or  heard  him  acknowl- 
edge. 

§  372.     Not  necessary  for  witness  to  have  seen  execution. 

§  373.     Saw  firm  name  signed. 

§  374.     Grantor's  name  instead  of  attorney's  in  certificate  fatal. 

§  375.     Clerical   omission   not   fatal   w^hen. 

C.     PROOF  BY  WHOM  TAKEN. 

§  376.     Generally. 

§  377.     Officer  who  is  subscribing  witness  is  qualified. 

D.     PROOF  OF  INSTRUMENTS  FOR  RECORD  BY  WHOM  MADE. 

§  378.  By   subscribing   witnesses    generally. 

§  379.  Where  there  were  no  subscribing  witnesses. 

§  380.  Witness  beyond  jurisdiction  of  the  court. 

§  381.  Act  of  May  12,  1846. 

§  382.  Act    of    March    6,    1863. 

§  383.  Revised   Statutes  of   1879   and   1895. 

§  384.  Number  of  witnesses  to  prove  handwriting  required. 

E.     WHO  MAY  BE  SUBSCRIBING  WITNESSES. 

§  385.  General    rule. 

§  386.  Held  that   grantee  is  incompetent  witness. 

§  387.  Interest   disqualified  witness  when. 

§  388.  Idem. 

§  389.  Interest  does  not  disqualify  when. 

§  390.  Where   one   witness  incompetent,   handwriting   of   other   may 

be  proved. 

§  391.  Grantor's  selection  and  volunteer  witnesses. 


TABLE   OF  CONTENTS.  xix 

F.     WITNESS  MUST  BE  KNOWN  TO  OFFICEE. 
§  392.     Witness  required  to  be  known  when. 

G.     CERTIFICATE   OF   PROOF   BY   SUBSCRIBING   WITNESSES. 

§  393.  Must  show  that  witness  known. 

§  394.  Idem. 

§  395.  That  witness  was  sworn. 

§  396.  That   witness   saw   execution,   or   heard   acknowledgment   and 

was  requested  to  sign. 

§  397.  Idem— Rule  prior  and  subsequent  to  1846. 

§  398.  Where  witness'   name   appears   on   deed,  it   is  not   necessary 

to  certify  that  he  was  a  subscribing  witness. 

§  399.  Alternative  certificate. 

§  400.  Irregular  certificate. 

§  401,  Official   character. 

§  402,  Seal, 

§  403,  Signature. 

§  404.  Purposes  and  considerations. 

§  405,  "Execute"  instead  of  "subscribe," 

§  406.  Other  requirements  and  force  and  effect  of  certificate. 

§  407.  Form  of  certificate  of  proof  controlled  by  what  law. 

§  408.  Substantial  compliance  with  statute  only  required. 

H,  STATUTORY  REQUIREMENTS  AND  FORMS  FOR  PROOF  BY 
SUBSCRIBING  WITNESSES. 

§  409.  Decree  of  April  18,  1834 — Judges  to  be  assisted  by  witnesses. 

§  410.  Act  of  December  20,  1836— Chief  justices  authorized  to  take 

proof. 
§  411,  Clerk   authorized  to   record   on   proof  by   one   witness, 

§  412,  Proof  by  two  witnesses  or  handwriting  of  one, 

§  413,  Certificates  and  form  under  this  act. 

S  414.  Act  of  January  19,  1839 — Required  certificate, 

§  415.  Act  of  January  18,  1840 — Statutes  of  frauds, 

§  416.  Act  of  February  5,  1840— Two  witnesses— Certificate, 

§  417.  Act  of  February  5,  1841— Validates. 
§  418.  Idem— Certificate   and   proof. 

§  419,  Act  of  May  8,  1846 — Commissioners  of  deeds, 

§  420,  Act  of  May  12,  1846 — Proof  and  acknowledgment,  how  made. 
§  421.  Handwriting  proved. 

§  422.  Grantor   unknown. 

§  423,  Certificate  attested. 

§  424.  Presumption  where  no  certificate  of  proof  of  identity. 

§  425.  No  form  provided. 

§  426.  Act  of  February  9,  1860— Validates. 

§  427.  Acts  of  1861,  1862,  1866  and  1871. 


XX  TABLE  OF  CONTENTS. 

§  428.  Act  of  1863— Where  grantor  makes  liis  mark. 

§  429.  Act   of   August   13,   1870— Validates. 

§  430.  Act  of  May  19,   1871— Witness  not   disqualified  by   interest. 

§  431.  Act  of  April  27,  1874— Validates. 

§  432.  Eevised   Statutes    of    1879    and    1895— Proof   by    subscribing 

witness. 
§  433.  Grantor  know  or  proven. 

§  434.  Prior  to   Eevised   Statutes   of   1879. 

§  435.  Form  of  certificate. 

§  436.  Proof   of   handwriting. 

§  437.  Facts  to  be  proven. 

§  438.  Where  instrument  signed  by  mark. 

§  439.  Number  of  witnesses. 


I.     PEOOF  OF  INSTEUMENTS  BY  PEOOF  OF  HANDWEITING. 

§  440.  What  law  in  force. 

§  441.  Proof  must  conform  to  statute  in  force  at  tinie  proof  is  made. 

§  442.  Proof  for  record  by  proof  of  handwriting. 

§  443.  Must  be  proved  by  persons  authorized  by  statute. 

§  444.  Where    witness    is    interested. 

§  445.  Where  witness  is  grantor  or  grantee. 

§  446.  Ancient  instrument. 

§  447.  Predicate  for  secondary  evidence. 

§  448.  Most  satisfactory  proof. 

§  449.  Proof  of  handwriting  by  comparison. 

§  450.  Eule  modified. 

§  451.  Certificate  of  proof  by  proof  of  handwriting. 

§  452.  Substantial  compliance  only  necessary. 

§  453.  Valid   forms. 

§  454.  Idem. 


J.     STATUTES   AND   NOTES   CONCEENING   PEOOF  BY  PEOOF 
OF    HANDWEITING. 

§  455.  Act  of  December  20,  1836. 

§  456.  Handwriting   of   whom— Certificate. 

§  457.  Admissible  in  evidence  but  not  of  record. 

§  458.  Act  of  January  19,  1839— Signature  of  signer. 

§  459.  Act    of   January    18,    1840— Statute    of    frauds. 

§  460.  Act  of  February  5,  1840— Proof  by  two  witnesses. 

§  461.  Act  of  February  5,  1841— By  a  subscribing  witness. 

§  462.  Act  of  May  12,  1846— Witness  absent. 

§  463.  Sufficient  proof — Grantee  prove  absence  of  witnesses. 

§  464.  Act  of  February  9,  1860— Validates. 

§  465.  Act  of  March  6,  1863— Witness  absent. 

§  466.  Sufficient   proof   under  this   act. 


TABLE   OF  CONTEXTS.  xxi 

§  467.     Eevised  Statutes  of  1879  and  1895— Handwriting  of  grantor 

and  one  subscribing  witness  proved. 
§  468.  Facts  which  must  be  proven. 

§  469.  Signature  by  mark— Proof,  how  made. 

§  470.  Proof  made  by  whom. 

K.     OTHEE  MEANS  OF  PEOVIXG  CONVEYANCES  FOE  EECOED. 

§  471.     Obtaining   and   recording   judgment. 
§  472.     Curing  certificates. 

L.  PEOOF  OF  DEEDS  OFFEEED  IN  EVIDENCE. 

§  473.  Common-law    rules    of    evidence. 

§  474.  By  subscribing  witnesses. 

§  475.  Subscribing  witnesses  not  obtainable  or  adverse  party. 

§  476.  Where  witness'   handwriting  cannot  be  proved. 

§  477.  May  be  proved  by  grantee  when. 

§  478.  Proved  by  any  competent  witnesses  when. 

§  479.  No  subscribing  witnesses— Proof,  how  made. 

§  480.  By  other  evidence. 

§  481.  Primary  and  secondary  evidence. 

§  482.  General  rule. 

§  483.  Line   drawn   between   primary  and   secondary   evidence. 


CHAPTER  XIII. 

SEALS. 

A.     GENEEAL   TEXT. 

§  484.     Seals  essential— Kind  of  seal  to  be  used. 

§  485.     Not  constructive  notice  without  seal. 

§  486.     Not  required  when. 

§  487.     Attachment  of  seal  is  question  of  fact, 

§  488.     Eeference  to  seal  unnecessary  when  attached. 

§  489.     Presumption  and  statement  as  to  seal. 

§  490.  Eeference  to  seal  on  record  affords  presumption  of  proper 
seal. 

§  491.  Statement  in  record  "no  seal  on"  ineffectual  if  original 
shows  seal. 

§  492.  No  presumption  that  seal  was  attached  where  there  is  noth- 
ing to  show  it. 

§  493.     Clerical  omission  of  word  "seal"  not   fatal. 

§  494.     Parol  evidence  to  aid  seal. 

§  495.     Omission  of  seal  by  mistake  not  aided  by  parol. 

§  496.     Parol  evidence  to  aid  omission  admissible  when. 


xxi!  TABLE  OF  CONTENTS. 

§  497.  Seal  may  be  attached  when. 

§  498.  Justices  of  the  peace  must  use  notarial  seals. 

§  499.  No  form  of  seal  for  commissioners  of  deeds  jjrescribed  when. 

§  500.  Forms  of  seals  prescribed. 

§  501.  Private   seals   or   scrolls— Eailroad   company's   seals — Private 

seals  in  lievi  of  official. 
§  502.  Conveyance   without   private   seals   not    void, 

B.  STATUTORY  ENACTMENTS  EELATING  TO  SEALS. 

§  503.  Act   of   December   20,   1836— Seal   of   county   court. 

§  504.  Act   of  November   16,   1837 — Notaries   shall   use   seal. 

§  505.  Act  of  February  5,  1840— Use  of  seal  required. 

§  506.  Act  of  February  3,  1841— Use  of  seal  required. 

§  507.  Act  of  February  5,  1841 — Use  of  seal  required. 

§  508.  Act   of  January  10,   1845— Notarial   seal. 

§  509.  Act  of  April  29,  1846— Use  of  seal  required. 

§  510.  Act  of  April  30',  1846 — Judges  and  notaries  to  attach  seals. 

§  511.  Act   of   May   8,   1846— Commissioners   of   deeds   to   use   seals. 

§  512.  Act  of  May  11,  1846— Seal  of  district  court. 

§  513.  Act  of  May  13,  1846— Notarial  seals. 

§  514.  Act  of  May  12,  1846— Seals  of  county  court. 

§  515.  Act  of  May  13,  1846— Seals  of  county  court. 

§  516.  Act  of  March  16,  1848 — Seals  of  county  court. 

§  517.  Act  of  November  24,  1851— Validates  seal  used  by  Galveston 

county  court. 

§  518.  Acts   of   April   6,   1861,   and  January   14,   1862— Use   of   seals 

required. 

§  519.  Act  of  December  31,  1861 — Seals  of  commissioners  of  deeds. 

§  520.  All  subsequent  acts  required  the  use  of  seals. 

§  521.  Act  of  June  16,  1876— Seal  of  county  court. 

§  522.  Act  of  June  24,  1876— Seals  of  notaries. 

§  523.  Act  of  August  18,  1876 — Seals  of  county  court. 

§  524.  Act  of  April  18,  1879— Validated  certain  notarial  seals. 

§  525.  Act  of  March  18,  1881— Validated  certain  notarial  seals. 

§  526.  Act  of  April  1,  1881— Notarial  seals. 

§  527.  Act  of  April  5,  1889— Validates  certain  notarial  seals. 

(For  necessity  of  seals  prior  to  December  20,  1836,  see  ante, 

§  3   (d).)    ' 


CHAPTER  XIV. 

AUTHENTICATION  WITHOUT  THE  STATE. 

§  528.     Generally— Must  be  taken  in  compliance  with  Texas  laws. 

§  529.     Foreign  language. 

§  530.     Form  and  requirements  of  certificates  and  acknowledgments. 


TABLE    OF   CONTENTS.  xxiii 

§  531.  Authority   shown   by   certificate   of   conformity   when. 

§  532.  Official  character  shown  by  certificate. 

§  533.  Certificate  must  show  that  the  court  before  whom  acknowl- 
edgment is  made  is  a  court  of  record. 

§  534.  Other  rule  in  Illinois. 

§  535.  Judges   of   courts   of  record   no   authority   after   1879. 

§  536.  Acknowledgment  authorized  without  the  state  by  act  of 
February  5,   1841. 

§  537.  As  to  acknowledgments  of  married  women. 

§  538.  Certificates  of  conformity. 

§  539.  Continued    in    force. 

§  540.  Acknowledgments  of  married  women  by  act  of  April  30,  1846. 

§  541.  Eepealed   former   laws. 

§  542.  Certificate  of  conformity  under  above   act. 

§  543.  Authority  continued. 


CHAPTER  XV. 

WHO  MAY  MAKE  ACKNOWLEDGMENTS. 

Generally. 
Officer's  deputy. 
The  law  elsewhere. 
Agent  or  attorney. 

Attorney   of   married   woman. 

Firm  as  attorney  in  fact. 

Irregular  certificate  of  attorney's  acknowledgment. 
Partner   may   acknowledge. 

Either  partner  may  acknowledge   in   firm   name. 
Corporations   may   acknowledge. 

Not  necessary  to  state  that  it  was  the  act  of  the  corpora- 
tion. 

By  vice-president. 

Attorney  in  fact   not   required  to  use  corporate  seal. 

Known   to   officer,   etc. 
Railroad  corporations— No  acknowledgment  required  when. 

Acknowledgment   required   after   1871. 
Married  women — Husband  must  join. 

Held  that  it  must  be  acknowledged  by   husband   also. 

Husband's  acknowledgment  not  necessary. 

Acknowledgments  by   husband  and  wife  need  not  be  at 
aame  time. 

When  wife  is  abandoned  by  husband. 

When  husband  is  insane. 

Married  woman  as  agent. 
Wife  cannot  authorize  husband  to  act  for  her. 


§ 

544. 

§ 

545. 

§ 

546. 

§ 

547. 

§  548. 

§ 

549. 

§ 

550. 

§ 

551. 

§ 

552. 

§ 

553. 

§ 

554. 

§ 

555. 

§ 

556. 

§ 

557. 

§ 

558. 

g 

559. 

§ 

560. 

§ 

561. 

§ 

562. 

§ 

563. 

§ 

564. 

§ 

565. 

§ 

566. 

§ 

567. 

xxiv  TABLE  OF  CONTENTS. 

§  568.  Married  woman  may  convey  by  attorney. 

§  569.  Wife 's    executory    contracts. 

§  570.  Idem. 

§  571,  Special    commissioner. 

§  572.  Judge  of  first  instance. 

(See  "Proof  by  Subscribing  Witnesses.") 


CHAPTER  XVI. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PKOOF-GEN- 

EEALLY. 

§  573.  Interest   disqualifies. 

§  574.  Stockholder   of    corporation. 

§  575.  Officers   of   corporation. 

§  576.  Commission   as   trustee. 

§  577.  Preferred  creditor. 

§  578.  Deputy    of   interested    party. 

§  579.  Agent  or  attorney. 

§  580.  Idem. 

§  581.  By  partner  of  grantee, 

§  582.  Eelationship. 

§  58B.  Husband   of  grantee. 

§  584,  Attesting   witnesses. 

§  585.  De  facto  officers. 

§  586,  Ex-officio  officers. 

§  587.  Deputies  may  take  when. 

§  588.  Deputy  county  clerks. 

§  589.  Deputy  and  "pro  tem"  county  clerks. 

§  590.  Deputy    district    clerks. 

§  591.  Deputy  justices  of  the  peace. 

§  592.  Deputy  district  clerks. 

§  593.  Presumptions. 

§  594.  Judicial  knowledge  of  authority  of  officers. 

§  595.  Extraterritorial  authority. 

For  authorized  officers  prior  to  December  20,  1836,  see  ante, 
§§  5-21. 

For  authorized  officers  subsequent  to  December  20,  1836,  see 
chapters   17-27. 


TABLE    OF   CONTENTS. 


CHAPTER  XVII. 


WHO  MAY  TAKE  ACKNOWLEDGMENTS  AND  PEOOF  WITHIN 
THE  STATE,  CONTINUED— THE  VAEIOUS  LAWS  CON- 
CERNING THE  AI'THOEITY  OF  OFFICEES  SINCE  AC- 
KNOWLEDGMENTS WEEE  EEQUIEED  DECEMBEE  20,  1836. 

§  596.     Composition  of  courts  in  1836— Judges  remain  in  office. 

§  597.     Act  of  December  20,  1836— County  court. 

§  598.  Chief   justices   ex-offieio   notaries. 

§  599.  Clerks    authorized    to    take    acknowledgments   and 

proof. 
§  600.  Clerk  "pro  tem"  authorized. 

§  601.  Proof   by   witnesses   before   county   clerk   or   judge. 

§  602.  Notes  on  above  act. 

§  603.     Act   of  June   12,   1837 — Associate   justices. 
§  604.     Act   of  November  16,   1837 — Notaries. 
§  605.     Act   of   December   21,   1837— Deputies. 
§  606.  Note. 

§  607.     Act  of  May  15,  1838— Notaries. 
§  608.     Act  of  January  19,  1839— Duties  of  recorder. 
§   609.  Note. 

§  610.     Act  of  January  26,  1839— Chief  justices  of  county  court. 
§  611.     Act  of  February  5,  1840— Deeds  to  be  by  writing,  sealed 
and    delivered,   and   acknowledged   or   proved   by   two 
witnesses  before  the  county  court. 
§  612.  When  constructive  notice. 

§  613.  Clerks  authorized  to  record  on  acknowledgment   or 

proof,  or  on  certificate  of  a  district  judge,  chief 
justice  or  notary. 
§  614.  Acknowledgment  before  two  justices  of  the  peace. 

§  615.  Notes  on  above  act. 

§  616.     Act  of  January  22,  1841— Associate  justices. 
§  617.     Act  of  February  3,  1841— Acknowledgments  of  married 

women. 
§  618.  Notes. 

§  619.     Act  of  February  5,  1841— Validates. 
§  620.  Idem— Deeds  thereafter  to  be  recorded. 

§  621.  Note. 

§  622.  1.  Did  not  revoke    authority    of    officer    previously 

authorized— Eepeal  by  implication. 
§  623.  Idem— Eevising  prior  statute. 

§  624.  Idem— Where  latter  is  clearly  intended  as  sub- 

stitute for  former. 
§  625.  Idem— Statutes   relating  to   same   subject    mat- 

ter. 


xx\  ■  TABLE  OF  CONTENTS. 

§  G'26.  2.  Effect  on  authorit}'  of  officers  previously  author- 

ized to  take  wife's  acknowledgment. 

§  627.  3.  Authorized    additional    officers. 

§  628.  Idem— Statutes   should    be     construed    so   that 

both   may   stand. 

§  62i).  Idem — Where   both     may    stand     parties     have 

their  election  of  remedies. 

§  630.  Idem — Cases  not  decisive. 

§  631.  Authority  revoked  when. 

§  632.     Act  of  January  3,  1842 — Associate  justices. 

§  633.     Act   of  January  10,   1845 — Notaries. 

§  634.  Construction  of  above  statute. 

§  634a.  Constitution  of  July  4,  1845— Laws  continued  in  force. 

§  635.     Act  of  April  29,  1846— Separate  property  of  wife. 

§  636.  Note. 

§  637.     Act  of  April    30,    1846 — Acknowledgments    of    married 
■   women  within  the  state. 

§  638.  Acknowledgments   of   married  women    without    the 

state. 

§  639.  Law  applies  to  what  property. 

§  640.  Former   laws  repealed. 

§  641.  Effect    of    above    law. 

§  641a.  Effect  on  prior  acts. 

§  642.     Act  of  May  2,  1846— Chief  justices  to  hold  over. 

§  643.     Act  of  May  13,  1846— Notaries. 

§  644.     Act  of  May  12,  1846— Officers  authorized. 

§  645.  Prior  laws  repealed. 

§  646.  Effect  of  this  act — First,  as  to  its  revocation  of  the 

authority  of  officers  previously  authorized  to  take 
acknowledgments    of    all    persons    except    married 
women. 
§§  647-651.  Second,  as  to  its  revocation  of  the  authority  of  offi- 

cers previously    authorized    to   take    acknowledg- 
ments of  married  women. 

§  648.  Idem— Acts    of    April  30,   1846,   and    May    12, 

1846,   should   be   construed   together. 

§  649.  Idem — Acts  passed  by   same  legislature. 

§  650.  Idem — General  and  special  laws  construed. 

§  651.  Idem— Act   of   April   30,   1846,   prescribed   only 

mode  for  married  women. 

§  652.  Third,  may  officers  named  in  act  of  May  12,  1846, 

take  wife's  acknowledgment? 

§  653.  Idem — Acts  passed  at  different  legislatures. 

§  654.  Idem — Statutes  construed  together. 

§  655.  Idem— Act   of  April   30,   1846,  not  intended   to 

name  only  officers  to  be  authorized. 

§  656.  Idem — Proper    construction    of    above    act. 


TABLE    OF   CONTENTS.  xxvii 

§  657.     Act  of  May  13,  1846— An  act  organizing  county  courts. 

§  658.  Deputy   clerk. 

§  659.  Seal. 

§  660.  Two    county    commissioners    to    act    in    absence    of 

chief  justice. 
§  661.  Laws  repealed. 

§  662.  Effect  of  above  act. 

§  663.  Idem— Eepealed  by  implication. 

§  664.  Idem— Statute      revising     subject      matter      of 

former. 
§  665.  Statute  intended  as  substitute  for  former. 

§  666.  A  law  shall  embrace  but  one  subject  matter. 

§  667.  Deputies. 

§  668.     Act  of  March  16,  1848- Deputy  county  clerks. 
§  669.     Act   of   March   16,   1848— County   courts. 
§  670.  Deputy  county  clerk. 

§  671.  "Clerk  pro  tern." 

§  672.  Two  county  commissioners  to  act. 

§  673.  Certificates. 

§  674.  Chief    justices    take    acknowledgments    of    married 

women. 
§  675.  Effect   of  above   act. 

§  676.  Its  constitutionality. 

§  677.  Object  of  act  must  be  single. 

§  678.  Are  chief  justices  authorized  to  take  acknowl- 

edgments  of   married   women? 

§  679.  Authority  as  ex-officio  notary. 

§  680.  Were  clerks  "pro  tern"  authorized? 

§  681.     Act   of   December  18,   1849— County  clerks  to   take   ac- 
knowledgments. 

§  682.     Act    of    December    29,    1849— County    commissioners    to 
perform  duties  of  chief  justice. 

§  683.     Act   of  February  9,   1856— Deputy  clerks. 

§  684.     Act  of  February  9,  1860— Validates. 

§  685.  Authenticated  as  above,  and  afterward  recorded. 

§  686.     Act  of  April  6,  1861— Officers  authorized. 

§  687.  Effect  of  above  act. 

§  688.     Act  of  January  14,  1862— Officers  authorized— Validates. 

§  689.     Constitution   of   1866- County  court  provided  for. 

§  690.     Act  of  October  25,  1866— County  courts  provided. 

§  691.     Act  of  November  13,  1866— Officers  authorized. 

§  692.  Validity    of    above    act— Amendment    of    repealed 

statute. 

§  693.     Constitution   of   1869-District  and   county  clerks. 

§  694.     Idem- Justices   of   the   peace   commissioned  notaries. 

§  695.     Act  of  August  8,  1870-Officers  authorized. 

§  696.  Not   repealed. 


ii  TABLE  OF  CONTENTS. 

§  697.     Act   of  August   13,  1870— "An   act  to   organize  justice 

courts   and    county   courts." 
§  698.  Deputy  justices  of  the  peace  authorized. 

§  699.  County  court. 

§  700.  Eepealed,   when. 

§  701.     Act   of  August   13,   1870 — "An  act   to   validate   certain 

official   acts   of   county   judges." 
§  702.     Validates. 

§  703.     Act  of  May  6,  1871— Officers  authorized. 
§  704.     Act  of  May  31,  1871  —  Repeals  authority  of  deputy  jus- 
tices of  peace. 
§  705.     Act  of  April  14,  1874 — Validates  acts  of  district  clerks. 
§  706.     Act  of  April  20,  1874— District  clerks. 
§  707.     Act   of  May  2,   1874 — Validates   acts   of   notaries. 
§  708.     Constitution  of  1875— County  courts. 
§  709.  Justices   of   the   peace. 

§  710.     Act   of   May   25,    1876— County   clerks. 
§  711.  Idem. 

§  712.     Act  of  June   16,  1876 — County  courts. 
§  713.     Act  of  August  17,  1876 — Justices  of  peace. 
§  714.     Eevised  Statutes  of  1879— Justices  ex-officio  notaries. 
§  715.     Eevised  Statutes  of  1895 — Justices  ex-officio  notaries. 
§  716.     Eevised   Statutes   of   1895— Officers   authorized   to    take 

acknowledgments,  etc. 
§  717.  Effect   of   above   statute. 

For  the  laws  prior  to  1836,  see  chapter  1,  §§  3  (a), 

5-21. 
For  acknowledgments  taken  without  the  state,  see 

chapters  14,  18,  19. 
For  the   various   officers   considered   separately,   see 

chapters  20-28. 
For  validating  statutes,  see  chapter  28. 


CHAPTER  XVIII. 

WHO   MAY   TAKE   ACKNOVv  LEDGMENTS   AND   PEOOF   WITH- 
OUT THE  STATE  AND  WITHIN  THE  UNITED  STATES. 

§  718.     Act  of  February  3,  1841— Did  not  authorize  acknowledgments 

without  the  state. 
§  719.     Act  of  February  5,  1841 — Acknowledgments  without  the  state 

authorized. 
§  720.  Query,    as    to    acknowledgments    and    proof    by    married 

women. 
§  721.  Certificate  of  conformity  required. 

§  722.     Act   of   April   30,   1846— Married   women's   acknowledgments 

authorized. 


TABLE    OF    CONTENTS.  xxix 

§  723.  Married    women's    acknowledgments    authorized    without 

the  state. 
Property  applied  to. 
Former  law  repealed. 

As  to  repeal  of  law  of  February  5,  1841. 
Certificates  of  conformity  not  required. 
Authority  revoked  when. 
Act  of  May  8,  1846 — Commissioners  of  deeds  authorized. 
Idem. 

Remained  in  force  how  long. 
Act  of  May  12,  1846— Acknowledgments  without  state  again 
authorized. 
Eepealed  conflicting  laws. 
Certificates  of  conformity  not  required. 
Eemained  in  force  how  long. 
EfPect  on  prior  acts. 
Act  of  April  6,  1861 — Acknowledgments  without  state  again 
authorized. 
Conflicting  laws  repealed. 
Effect  on  prior  laws. 
Act  of  December  31,  1861 — Commissioners  of  deeds. 

Eemained  in  force  how  long. 
Act    of    January    14,    1862— Acknowledgments   without    state 
again   authorized. 
§   744.     Act  of  November  13,   1866 — Judges  and  clerks   of  courts  of 

record  without  the  state  authorized. 
§  745.  Force  and  effect  of  above  act. 

§  746.     Act  of  August  8,  1870 — Are  district  clerks  authorized? 
§   747.     Act    of   May   6,    1871 — Acknowledgments   without     the    state 

again  authorized. 
§   748.  Effect  of  this  act. 

§  749.     Act  of  April  27,  1874 — Validates  acknowledgments  taken  be- 
fore officers  now  authorized. 
§  750.  Force  and  effect  of  above  act. 

§   751.     Act  of  July  28,  1876— Validates  defective  certificates  of  ac- 
knowledgments   of    married   women. 
§  752.     Eevised  Statutes  of  1879  and  1895 — Acknowledgments  with- 
out the  state  again  authorized. 
§  753.  Judges  of  courts  of  record  omitted. 

§  754.  Commissioners  of  deeds  authorized. 

§  755.     Act  of  March  23,  1885,  and  Eevised  Statutes  of  1895— Com- 
missioners of  deeds  again  authorized. 
For  acknowledgments  and   proof  taken  witliout   the  United 
States,  see  chapter  19. 

For   roquiroments   of   acknowledgments   and   proof   and   cer- 
tificates thereof  taken  abroad,  see  ante,  chapter  14. 


§ 

724. 

§ 

725. 

§ 

726. 

§ 

727. 

§ 

728. 

§ 

729. 

§ 

730. 

§ 

731. 

§ 

732. 

§ 

733. 

§ 

734. 

§ 

735. 

§ 

736. 

§ 

737. 

§ 

738. 

§ 

740. 

§ 

741. 

§ 

742. 

§ 

743. 

TABLE  OF  CONTEMTS. 


CHAPTER  XIX. 

WHO   MAY   TAKE   ACKNOWLEDGMENTS   AND    PROOF  WITH- 
OUT  THE   UNITED   STATES. 

§  756.     Act    of    February    5,    1841— Acknowledgments     without     the 
United  States  authorized. 

§  757.  Certificates   of   conformity  required. 

§  758.     Act  of  April  30,  1846— Acknowledgments  of  married  women 
without  United  States. 

§  759.  Former  laws  repealed. 

§  760.     Act  of  May  12,  1846 — -Acknowledgments  taken  abroad  again 
authorized. 

§   761.     Act     of    April    6,   1861,     and    January   14,    1862— Prior    act 
amended. 

§  762.  Authority  of  others  revoked. 

§  763.     Act   of   November   13,   1866 — Prior   act   amended. 

§  764.     Act  of  May  6,  1871— Prior  act  amended. 

§  765.     Act  of  July  28,  1876 — Validates  certain  certificates  of  wife's 
acknowledgment. 

§   766.     Revised  Statutes  of  1879  and  1895 — Acknowledgments  abroad 
again  authorized. 

§  767.     Act  of  March  23,  1885,  and  Revised  Statutes  of  1895— Com- 
missioners of  deeds  authorized. 
For  requirements  of  acknowledgments  and  proofs,  and  cer- 
tificates thereof,  taken  abroad,  see  ante,  chapter  14. 


CHAPTER  XX. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PROOF- 
NOTARIES. 

§  768.     Notaries  generally. 

§   769.     Character — De  facto  and  de  jure  officers. 

§  770.     Eligibility. 

§  771.     Appointment   and   qualification. 

§  772.  .  Sufficient   designation— "  N.  P." 

§  773.     Jurisdiction    and   authority. 

§  774.     Seals. 

§  775.  Summary  of  statutes — Times  when  notaries  were  au- 
thorized to  act. 

§  776.  Decree  of  November  13,  1835 — First  and  second  judgei 
ex-ofiicio  notaries. 

§  777.  Decree  of  January  20,  1836 — Primary  judges  ex-officio 
notaries. 

§  778.     Constitution  of  1836— Laws  remain  in  force. 


TABLE    OF   CONTENTS.  xxxi 

§  779.     Act   of   December   20,   1836— Chief    justices   of     county 
courts  ex-officio  notaries. 

§  780.  Other  notaries  not  authorized  to  take  acknowledg- 

ments. 

§  781.  Chief  justices  continued  to  act. 

§  782.     Act    of     June    12,    1837— Associate     justices    might    act 
■when. 

§  783.     Act  of  November  16,  1837— Notaries  provided  for. 

§  784.     Act  of  May  15,  1838— Notaries  provided  for. 

§  785.     Act  of  January  19,  1839— Notaries  omitted. 

§  786.  Act  of  January  26,  1839— Chief  justices  of  county 
courts  authorized  to  exercise  powers  of  notaries. 

§  787.  Act  of  February  5,  1840— Notaries  authorized  to  take 
acknowledgments. 

§  788.     Act  of  January  22,  1841— Associate  justices  to  act  when. 

§  789.     Act  of  February  3,  1841 — Notaries  omitted. 

§  790.     Act  of  February  5,  1841— Validates  want  of  authority. 

§  791.     Act  of  January  3,  1842— Associate  justices  to  act  when. 

§  792.  Act  of  February  5,  1844,  January  10,  1845— Notaries 
provided  for. 

§  793.     Eesolution  of  February  1,  1845— Notaries  provided  for. 

§  794.     Constitution   of   1845— Notaries   provided   for. 

§  795.  Act  of  April  30,  1846— Notaries  authorized  to  take  ac- 
knowledgments of  married  women. 

§  796.  Act  of  May  12,  1846— Authorized  notaries  to  take  ac- 
knowledgments. 

§  797.     Act  of  May  13,  1846— Notaries  provided  for. 

§  798.  Act  of  March  16,  1846— Acknowledgments  taken  by 
chief  and  associate  justices  have  same  force  as  no- 
taries. 

§  799.  Act  of  December  29,  1849— County  commissioners  to 
perform  duties  of  chief  justices. 

§  800.     Act  of  February  9,  1860— Validates  want  of  authority. 

§  801.  Act  of  April  6,  1861,  January  14,  1862,  March  5,  1863, 
November  13,  1866— Notaries  authorized  to  take  ac- 
knowledgments. 

§  802.     Constitution  of  1869— Justices  commissioned  notaries. 

§  803.  Act  of  August  8,  1870 — Notaries  author! /.ed  to  take  ac- 
knowledgments. 

§  804.  Act  of  August  13,  1870— Justices  and  their  deputies 
authorized. 

§  805.     Act  of  August   13,  1870  — Validates. 

§  806.  Act  of  May  6,  1871— Notaries  authorized  to  act  beyond 
state. 

§  807.     Act  of  May  31,  1871  — Authority  of  deputy  justices  re- 
voked. 
508-810.     Act  of  April  27,   1874,  May  2,  1874,  March   13,   1875- 
Validates  want  of  authority. 


TABLE  OF  CONTENTS. 

§  811.     Constitution    of    1875— Notaries   provided    for   and   jus- 
tices  of   tlie   peace   ex-officio   notaries. 

§  812.     Act  of  June  24,  1876 — Notaries  authorized  to  take  ac- 
knowledgments. 

§  813.     Act  of  June  26,  1876— Office  of  notary  public  abolished. 

§  814.     Act  of  July  28,  1876— Validates. 

§  815.     Act  of  August  17,  1876 — Justices  commissioned  notaries. 

§  816.     Act  of  April  11,  1879— Notaries  provided  for. 

§  817.     Act   of   April   18,   1879— Validates   certificates   with   de- 
fective seals. 

§  818.     Eevised  Statutes  of  1879— Justices  ex-officio  notaries, 

§  819.     Act  of  April  1,  1881— Notaries  authorized  to   take  ac- 
knowledgments. 

§  820.     Act  of  February  20,  1885 — Notaries  provided  for. 

§  821.     Act  of  April  1,  1887— Validates  acts  of  William  Veal. 

§  822.     Act  of  April,  1889— Notaries  provided  for. 

§  823.  ■  Eevised  Statutes  of  1895 — Justices  ex-officio  notaries. 

§  824.     Notaries  authorized  to  take  acknowledgments. 

§  824a.  Act  of  April  1,  1903— Notaries  provided  for. 

For  authority  of  notaries  prior  to  1836,  see  ante,  §  6. 


CHAPTER  XXL 

WHO  MAY  TAKE  ACKNOWLEDGMENTS  AND  PKOOF— JUS- 
TICES OF  THE  PEACE. 

§  825.     Generally. 

§  826.     Summary  of  statutes. 

§  827.  Act  of  December  20,  1836— Justices  of  peace,  associate  jus- 
tices  of   county   court. 

§  828.  Act  of  February  5,  1840 — Two  justices  of  the  peace  may 
take  acknowledgments. 

§  829.  Two    justices   must    act    together. 

§  830.     Act  of  March  16,  1840— Common  law  adopted. 

§  831.     Act  of  February  3,  1841— Justices  omitted. 

§  832.     Act  of  February  5,  1841 — Justices  of  peace  omitted. 

§  833.     Act   of  April  30,   1846— Justices   of  the  peace   omitted. 

§  834.     Act  of  May  11,  1846— Election  of. 

§  835.     Act  of  May  12,  1846— Justices  of  peace  omitted. 

§  836.  Constitution  of  1869 — ^Justices  commissioned  to  act  as  notar- 
ies. 

§  837.  Act  of  August  13,  1870 — Justices  authorized  to  take  ac- 
knowledgments. 

§  838.  Justices  authorized  to  appoint  deputies. 

§  839.     Act  of  May  6,  1871 — Justices  omitted. 

§  840.     Act  of  May  18,  1871— Validates. 

§  841.     Act  of  May  25,  1871— Validates, 


§ 

842 

§ 

S43, 

s 

844, 

§ 

84o. 

§ 

846. 

s 

847. 

§ 

S4:<. 

§ 

S49. 

s 

SoO. 

§ 

8.51. 

TABLE    OF   CONTEXTS.  xxxiii 

Act  of  May  31,  1871— Validates. 
Act  of  April  14,  1874— Validates. 
Act  of  April  20,   1874 — District   clerks  authorized  to   qualify 

as  justices. 
Act   of  April,   1876 — Justices— Appointment  of. 
Constitution  of  1875 — Justices  of  the  peace  shall  be  ex-officio 

notaries. 
Act  of  July  28,  1876— Validates. 

Act  of  August  17,  1876 — -Justices  commissioned  notaries. 
Act  of  April  18,   1879— Validates. 

Revised  Statutes  of  1S79 — Justices  commissioned  notaries. 
Eevised  Statutes  of   1895 — Justices  commissioned    notaries. 
For  authority  prior  to  1836,  see  ante,  §§  7-21. 
For  acknowledgments  without  the  state,  see  ante,  §§  718-767. 


CHAPTER  XXII. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS;  OFFICEES  OF  COUN- 
TY COURT,  TO  WIT,  CHIEF  AND  ASSOCIATE  JUSTICES, 
COUNTY  JUDGES,  COUNTY  COMMISSIONERS  AND  COUN- 
TY COURTS. 

§  852.     Summary  of  statutes — Chief  justices  of  county  courts. 

§  853.  Idem— County   judges. 

§  8-54.  Idem — County    courts. 

§  855.  Idem — Associate  justices. 

§  856.  Idem — County   commissioners. 

§  .S57.     Act  of  December  20,  1836 — Chief  and  associate  justices. 

§  85s.     Act  of  June  12,  1837 — Associate  justices. 

§  859.     Act   of  .January   19,   1839 — Chief  justice  and  county  court — 

Note. 
§  8(J0.  Note. 

Act  of  January  26,  1839 — Chief  justices. 

Act  of  February  5,  1840— Chief  justice  and  county  courts. 

Act  of  January  22,  1841 — Associate  justices. 

Act  of  February  3,  1841— Chief  ju^:tices. 

Act  of  February  5,  1841— Validates. 

Chief  justices. 
Act  of  January  3,  1842— Associate  justices. 
Act   of   April   29,   1846— Schedule   of   married   woman's   prop- 
erty. 
Act  of  April   30,   1846— Chief  justices   omitted. 

Note. 
Act  of  May  2,  1846— Chief  justices. 
Act  of  May  12,  1846 — Chief  justices  omitted. 
Note. 


§ 

S61. 

§ 

862. 

§ 

863. 

s 

864. 

§ 

865, 

§ 

866. 

§ 

867. 

^ 

868. 

§ 

SG9. 

§ 

870. 

§ 

871. 

§ 

872. 

j: 

873. 

xxxiv  TABLE  OF  CONTENTS. 

§  S74.  Act  of  May  13,  1846  — County  courts  and  county  commission- 
ers. 

^  875.  Note. 

§  876.  Act  of  March  16,  1S4S — County  court  established  and  chief 
justices  authorized  to  take  acknowledgments. 

5  877.  County  commissioners. 

§  878.  Note. 

5:  879.  Act  of  December  29,  1849 — County  commissioners. 

§  880.  Act  of  February  9,  1860— Validates. 

§  881.  Act  of  April  6,  1861— Judges  of  courts  of  record  authorized. 

§  882.  Act  of  January  14,  1862 — ^Judges  of  courts  of  record  author- 
ized. 

§  883.  Constitution   of   1866— County   courts. 

§  884.  Act  of  October  25,  1866 — County  courts. 

§  885.  Act  of  November  13,  1866— Judges  omitted. 

§  886.  Act  of  August  8,  1870— District  clerks  and  deputies. 

§  887.  Act  of  August  13,  1870 — County  court  composed  of  five  jus- 
tices of  the  peace. 

§  888.  Act  of  August  13,  1870— Validates. 

§  889.  Act  of  May  6,  1871 — Omits  county  judges. 

§   890.  Constitution  of  November  24,  1875 — County  courts. 

§  891.  Act  of  June  16,  1876— County  courts. 

§  892.  Act  of  July  28,   1876— Validates. 

§  893.  Act  of  August  18,  1876— Seal. 

§  894.  Eevised  Statutes  of  1879  and  1895— Officers  authorized. 


CHAPTER  XXIII. 

WHO   MAY   TAKE    ACKNOWLEDGMENTS— DISTEICT   JUDGES. 

§   895.     Summary   of   statutes. 

§  896.  Act  of  February  5,  1840 — District  judges  .authorized  to  take 
acknowledgments. 

§  897.  Act  of  February  3,  1841 — District  judges  authorized  to  take 
acknowledgments  of  married  women. 

§  898.  Act  of  February  5,  1841— District  judges  omitted,  but  au- 
thorized as  associate  judges. 

§  899.  Act  of  April  30,  1846— District  judges  authorized  to  take 
acknowledgments  of  married  women. 

§  900.  Note. 

S  901.     Act  of  May  11,  1846— Seals. 

§  902.     Act  of  May  12,  1846 — District  judges  omitted. 

§  903.  Authority  of  district  judges  to  take   single   acknowledg- 

ments revoked. 

§  904.     Idem. 

§  90o.  Authority  of  district  judges  to  take  acknowledgments  of 

married  women    not   revoked. 


TABLE    OF    CONTENTS.  xxxv 

§  906.  Act  of  December  18,  1849— County  clerks  authorized  to  take 
acknowledgments. 

§  907.     Act  of  April  6,  1863 — Judges  of  courts  of  record  authorized. 

§  90?.  Act  of  January  14,  1862 — Judges  of  courts  of  record  au- 
thorized. 

§  909.  Act  of  November  13,  1866 — Authority  of  judges  of  court  of 
record  revoked. 

§  9r0.  Idem. 

§  911.     Act  of  August  8,  1870— District  judges    omitted. 

§  912.  Act  of  May  6,  1871 — District  judges  authorized  to  take  ac- 
knowledgments. 

u  913.     Act  of  July  28,  1876— Validates. 

§  914.  Kevised  Statutes  of  1879 — Authority  of  district  judges  re- 
voked. 

§  915.     Eevised  Statutes  of  1879  and  1895— Idem. 


CHAPTER  XXIV. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS— JUDGES  OF  THE 
SUPEEME  COUET  AND  COUETS  OF  APPEAL. 

§  916.     Summary   of   statutes. 

§  917.  Act  of  February  5,  1840 — Supreme  judges  authorized  to  take 
acknowledgments. 

§  9K.  Note. 

§  919.  Act  of  April  30,  1846 — Supreme  judges  authorized  to  take 
acknowledgments  of  married  women. 

§  920.  Note. 

§  921.  Act  of  May  12,  1846  — Authority  of  supreme  judges  to  take 
single  acknowledgment  revoked. 

§  92^.  Note. 

§  923.  Act  of  April  6,  1861 — Judges  of  supreme  court  again  au- 
thorized. 

§  924.  Act  of  January  14,  1862 — Judges  of  sujn-eme  court  again 
authorized. 

§  925.  Act  of  November  13,  1866— Authority  of  judges  of  supreme 
court  revoked. 

§  926.     Act   of  August   8,  1870 — Judges   of  supreme  court  omitted. 

§  927.  Act  of  May  6,  1871 — Judges  of  supremo  court  again  au- 
thorized. 

§  928.     Act  of  May  6,  1876— Court  of  appeals. 

§  929.     Act  of  July  28,  1876— Validates. 

§  930.  Eevised  Statutes  of  1879— Authority  of  judges  of  supreme 
court  revoked. 

§  931.     Act   of  April   13,  1892— Court   of  civil   appeals. 


xxxvi  TAJBLE  OF  CONTENTS. 

CHAPTER  XXV. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS— FEDEEAL  JUDGES. 

§  932.     Summary  of  statutes. 

§  933.     Act  of  April  6,  1861 — ^Judges  of  courts  of  record  authorized. 
§  934.  Idem. 

§  935.  Idem. 

§  936.  Act  of  November  13,  1S66 — Authority  of  judges  of  courts  of 
record  revoked. 

CHAPTER  XXVI. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS— COUNTY    CLEEKS, 
THEIE   DEPUTIES,   AND   PEO   TEM   CLEEKS. 

§  9S7.     Summary   of   statutes. 

§  93S.     Act   of  December   20,   1836— County   clerks   authorized— Note. 

§  939.  Idem. 

§  94D.  County   clerks   authorized   to   take   proof   of   handwriting. 

§  941.  '•'Pro  tern"  clerk. 

§  942.  Acknowledgments  by   county  clerks. 

§  943.     Act  of  December  21,  1837 — Deputy  county  clerks. 

§  94'4.  Idem. 

§  94'5.  Act  of  January  19,  1839— County  clerks  authorized  to  take 
acknowledgments  of  deeds,  to  be  recorded  in  their  own 
counties. 

§  946.  Validates. 

§  947.  Act  of  February  5,  1840 — County  clerks  authorized  to  take 
acknowledgments  of  instriinients  to  be  recorded  in  their 
own  counties. 

§  94S.  Validated. 

§  94P.     Act  of  December  24,  1840 — Validates  acts  of  Samuel  Todd. 

§  950.     Act  of  February  3,  1841 — County  clerks  omitted. 

§  951.     Act   of  February  5,  1841— Validates. 

§  952.  Idem. 

§  953.  County  clerks  authorized  to  take  acknowledgments  of  in- 
struments to  be   recorded   in  their   own   counties. 

§  954.  Idem. 

§  95"5.     Act   of  April  30,   1846 — County   clerks   omitted  — Note. 

§  956.  Idem. 

§  957.  Act  of  May  12,  1846 — County  clerks  authorized  to  take  ac- 
knowledgments. 

§  958.  Authority   of   county   clerks   extended — Of    certain   other 

olficers  revoked. 


TABLE   OF   CONTENTS.  xxxvii 

§  9o9.     Act   of  May  13,   1846— Deputies. 

§  960.  Idem. 

§  961.     Act  of  March  16,  1848— Deputies. 

§  962.     Act  of  March  16,  1848— Deputies  and  pro  tern  clerks. 

§  963.     Act  of  December  18,  1849— County  clerks  authorized  to  take 

acknowledgments  of  married  women. 
§  964.     Act  of  November  24,  1851 — Validates. 
§  965.     Act   of  February   9,    1856— Deputy   county   clerks   authorized 

to  take  acknowledgments. 
§  966.     Act  of  August  19,  1856 — Validates. 
§  967.     Act  of  February  9,  1860— Validates. 

§  968.     Act   of  April   6,   1861 — County   clerks  authorized  to   take   ac- 
knowledgments. 
§  969.     Act   of  January   14,   1862 — County   clerks   and   their   deputies 

authorized  to  take  acknowledgments. 
§  970.     Act   of  November   13,   1866 — •County  clerks  again   authorized. 
§  971.     Constitution   of   1869 — District  clerks   ex-officio   county  clerks. 
§  972.     Act  of  August  8,  1870 — District    clerks,    their    deputies    and 

notaries  authorized  to  take  acknowledgments. 
§  973.     Act  of  May  6,  1871 — District  clerks  again  authorized. 
§  974.     Act  of  May  25,  1871— Validates. 
§  975.     Constitution   of   1875— County   and    district   clerks   authorized 

when. 
§  976.     Act  of  May  25,  1876— Deputy  county  cleiks  authorized. 
§  977.     Act  of  June  16,  1876— Validates. 

§.07S.     Act   of  March  18,  1879— District   and  county   clerks   one  per- 
son— Validates. 
§  979.     Eevised    Statutes    of    1879    and    1895— Couuty    and    district 

clerks  again  authorized. 
§  980.  Eemained  in  force. 


CHAPTER  XXVII. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PEOOF— DIS- 
TRICT  CLEEKS   AND   THEIE   DEPUTIES. 

§  981.     Summary    of    statutes. 

§  982.     Constitution   of  1869 — District  clerks  ex-officio  county  clerks. 

§  983.  Act  of  August  8,  1870— District  clerks  and  deputies  author- 
ized. 

§  984.     Act  of  May  6,  1871 — District  clerks  and  deputies  authorized. 

§  985.     Act  of  May  25,  1871— Validates. 

§  986.     Act  of  April   14,   1874— Validates. 

§  987.  Act  of  April  20,  1874— District  clerks  may  qualify  as  justices 
of  peace. 


>.^-viii  TABLE  OF  CONTENTS. 

§  98S.  Constitution  of  1S75  — District  and  county  clorlcships  lield  by- 
one  person. 

S  989.     Act  of  July  28,  1876— Validates. 

§  990.  Act  of  March  13,  1879 — District  and  county  clerkships  held 
by  one  person— Validates. 

§  991.  Revised  Statutes  of  1879  and  1895— District  clerks  authorized 
— Deputies  omitted   but   authorized. 


CHAPTER  XXVIII. 

CURING     DEFECTIVE     ACKNOWLEDGMENTS     AND     CERTIFI- 
CATES. 

A.     GENERALLY. 
§     992.     By   officer — Officer   may   amend  certificate  when. 
§     993.  In  some  other  states  held  officer  may  correct  certificate. 

§     994.  The  reverse  held  in  most  other  states, 

§     995.     By  grantors — May  be  corrected  by  grantors. 
§     996.  Exception    to   above    rule,   where   husband   fails   to   join 

until  after  her  death. 
§     997.  Wife  may  acknowledge  after  death  of  husband. 

§     998.     By  action  at  law — Prior  to  Revised  Statutes  of  1879. 
§     999.  After  Revised  Statutes  of  1879  acknowledgment  may  be 

cured. 
§   1000.  Certificate   only  can  be  remedied,  not   acknowledgments 

when. 
§  1001.  Acknowledgment    defective    on    account    of    interest    of 

officer. 
§  1002.  Want   of  acknowledgment  by  single  person  cured, 

§  1003.  Above   acts   constitutional. 

§  1004.  Barred  by   limitation. 

§  1005.  Proved  by  circumstantial  evidence. 

§  1006.     By  statute — Constitutionality   of. 
§  1007.  Officer  interested  party. 

§  1008.  In  other  states. 

§  1009.  Idem. 

§   1010.  Idem. 

§  1011.  What  acts  constitutional, 

§  1012.  What    acts   unconstitutional. 

§  1013.  Idem. 

§  1014.     Change  of  law  will  not  effect  validity  of  acknowledgments. 
§   1015.     Validating    statutes — How    construed. 

B.     STATUTORY  ENACTMENTS— GENERAL. 

§  1016,     Validating  statutes  not  repealed. 

§  1017.     Act  of  January  19,  1839 — Copies  admitted  to  record  when. 


TABLE  OF  CONTEXTS.  xxxix 

§  1018.     Act    ot"   February    5,    1841  — Registration    of    instruments    ac- 
knowledged before   certain  officers  validated. 
§  1019.  Idem — How  construed. 

§  1020.  Idem. 

§  1021.  Idem. 

§  1022.     Act    of     April    29,    1846— Registration    of     wife's     property 

validated. 
§  1023.     Act    of     May   2,    1846— Acts     of     chief     justices    of     county 

courts  validated. 
§  1024.     Act  of  May  12,  1846  —Certain  instruments  may  be  recorded. 
§  1025.     Act  of  May  13,  1846— Certain  copies  admissible  in  evidence 

when. 
§  1026.  Idem. 

§   1027.     Act  of  November  24,  1851  — Seals  used  in  Galveston   county 

validated. 
§  1028.     Act    of     February     9,     1856— Acknowledgments     of    deputy 

county    clerks    validated. 
§  1029.     Act    of   February   9,    1860 — Registration    of   instruments    ac- 
knowledged before  certain  officers  validated. 
§  1030.  When   such  instruments  recorded,   copies  thereof  admis- 

sible in  evidence. 
§  1031.  Acknowledgment   before   unauthorized  notary   validated. 

§  1(J32.  Does   it   validate   where  the   acknowledgment   or   certifi- 

cate is  defective,  or  only  the  want  of  authority  in  the 
officer? 
§  1033.  Idem. 

§  1034.  Idem. 

§  1035.  Idem. 

§  1036.  Idem. 

§  1037.  Idem. 

§  1038.     Act  of  January  14,  1862 — Acknowledgments  of  county  clerks 

validated. 
I  1039.     Act   of     August    13,    1870— Acknowledgments   before    county 

judges  validated. 
§  1040.     Act   of  April   14,   1874— Acknowledgments   of   district   clerks 

as  justices  of  peace    validated. 
§  1041.     Act  of  April  27,  1874 — Acknowledgments  taken  without  the 
state  and  within   United   States  valid,  if  taken  before  an 
officer  now  authorized. 
§  1042.  Cured   want   of   authority   in   notary. 

§  1043.  In   case   of   married  woman's   acknowledgment. 

§  1044.  Above  act  restricted  to  United  States. 

§  1045.     Act    of     May    2,    1874 — Acknowledgments    of    notaries    vali- 
dated when. 
§  1046.  Idem. 

§  1047.     Constitution   of   1875— Certain    titles   shall   not   be   recorded, 
etc. 


xl  TABLE  OF  CONTENTS. 

§  104S.  Act  of  June  16,  1876 — Previous  acts  by  county  judges  which 
would  be  authorized  by  this  act,  validated. 

§  1049.  Act  of  July  28,  1876 — Cevtifieatos  of  married  women's  ac- 
knowledgments validated, 

§  1050.  Note. 

§  1051.  Act  of  March  13,  1879 — Acknowledgments  by  persons  hold- 
ing both  offices  of  district  and  county  clerks  validated. 

§  1052.  Act  of  April  18,  1879— Acknowledgments  of  notaries  using 
defective   seals,   validated. 

§  10^3.  Eevised  Statutes  of  1879  and  1895— Legality  of  acknowl- 
edgment and  proof  depends  on  law  in  force  at  time  same  is 
made. 

§   1054.  Acknowledgment   cui'ed  by  'action   at  law. 

§  1055.  Idem. 

§  1056.  Barred  by  limitation  when. 

§  1057.  Eevised  Statutes  of  1879  and  1895 — Validates  want  of  au- 
thority in  certain  officers. 

§  1058.     Act  of  March  18,  1881— Validates  defective  seal. 

§  1059.  Act  of  April  5,  1889 — Acknowledgments  by  notaries  using 
defective   seals   validated. 

§  1059a.  Act  of  April  15,  1905— Attempts  to  validate  want  of  corpo- 
rate seal  in  conveyances  by  attorney  in  fact. 

C.     STATUTORY   ENACTMENTS— SPECIAL. 

§   1060.     Act   of    December   24,    1840— Validates  the    acts   of  Samuel 

Todd. 
§  1061.     Act  of  August  19,  1856— Validates  the  official  acts  of  Levy 

S.  McMicken. 
§   1062.     Act  of  August  30,  1856 — Validates  the  notarial  acts  of  David 

P.  Fearris. 
§  1063.     Act  of  May  IS,  1871— Validates  the  official  acts  of  Silas  Mc- 

Crary  and  Jerry  Washington. 
§  1064.     Act   of   May   25,   1871— Validates   the   official   acts   of   L   H. 

Steen  as  district  clerk. 
§  1065.     Act    of   May   25,   1871— Validates   the   official   acts   of   I.   H. 

Steen  as  justice  of  the  peace. 
§  1066.     Act  of  May  31,  1871 — Validates  the  official  acts  of  I.  A.  Lee. 
§  1067.     Act   of  May  13,   1875 — Validates  the  notarial  acts  of  C.  L. 

Thurmond. 
§  1068.     Act   of   April   1,   18S7— Validates   the   notarial   acts   of   Wm. 

Veal. 
For   defective   authentication   prior   to    1836,   see   ante,    §    3. 


TABLE   OF   CONTENTS.  xli 

CHAPTER  XXIX. 

PLEADING  ACKNOWLEDGMENTS  AND  PROOF. 

§  1069.  Must  allege  acknowledgment   when. 

{  1070.  Idem. 

i  1071.  Married  woman  seeking  to  avoid  deed. 

§  1072.  Must  attack  acknowledgment  by  affidavit  when. 

CHAPTER  XXX. 

EEVENUE    STAMPS. 

A.     GENERAL  PRINCIPLES. 

§  1073.  Laws  which  required  the  use  of  revenue  stamps. 

j;  1074.  Effect   of   omission  under  Spanish   and   Mexican   laws. 

§  1075.  Effect  of  omissions  under  United  States  laws. 

§  1076.  Federal  laws  not  binding  on  state  courts. 

§  1077.  Federal  statutes  do  not  apply  to  state  courts. 

§  1078.  Laws  of  England  not  binding  here. 

B.     STAMP  LAWS  OF  SPAIN,  MEXICO  AND  TEXAS. 

§  1079.     Stamp  laws  prior  to  decree  of  182.3. 

§  lOBO.     Decree  of  October  6,  1823 — Seals  or  stamps  and  their  value 

and  use. 
S  1081.     Order  of  June  22,  1824— Form  of  stamps. 
§  10B2.     Decree  of  October  2,  1824— Form  of  stamps. 
§  10^83.     Decree  of  March  24,  1825 — New  settlers  exempt. 
§  1084.     Instructions  of  May  31,  1827 — Record-book  to  be  stamped. 
§  1085.     Instructions     of     September     4,     1827 — Record-book     to     be 

stamped. 
§  1086.     Decree   of  February   9,   1S28 — New  settlers  exempt. 
§  1087.     Ordinance  of  November  13,  1835 — Use  of  stamps  abolished. 

C.     STAMP    LAWS    OF   UNITED    STATES. 

§  1088.     Acts   of   1864   and    1866. 

§  1089.  Act  of  June  13,  1898 — Stamps— How  attached  and  can- 
celed— Effect. 

§  1090.  Provision  that  deeds  are  not  admissible  in  evidence  or  of 
record,  unless  stamped. 

§  IffOl.     Kinds  of  stamps. 

g  1092.     Exemptions. 

§   1093.     Sr-hedule  A — Stamp  laws. 


TABLE  OF  CASES. 


[The  References  are  to  Pages.] 

Abrams  v.   Ervin,  9   Iowa,   87 240 

Adams  v.   Pardne    (Tex.    Civ.   App.),   36   S.   W.   1017 

74,   81,   86,   88,   121,   128,   135,   141,   143 

Alabama  Life  Ins.  Co.  v.  Boykin,  38  Ala.  510 414 

Aldridge  v.  Mardoff,  32  Tex.  207 265,  278 

Alex^mder  v.  Houghton,  86  Tex.  702,  26  S.  W.  937 68,  208 

Alexander  v.  Maverick,  18  Tex.  179,  67  Am.  Dee.  693 361 

Alk-n  V.  Hoxey,  37  Tex.  334 10,  13,  14,  16,  32,  160 

Allen    V.    Urquhart,    19    Tex.    480 106 

Anient  v.  Breunan,  1  Tenn.  Ch.  431 , 240 

Andrews  v.  Bonliam,  19  Tex.  Civ.  App.  179,  46  S.  W.  902 120 

Andrews  v.  Marshall,  26  Tex.  216 

5,  7,  10,  13,  14,  16,  23,  26,  30,  32 

Angier  v.  Coward,  79  Tex.  554,  15  S.  W.  698 Ill,  145,  232 

Arnold  v.  Attoway   (Tex.  Civ.  App.),  35  S.  W.  482 38 

Atkinson  v.  Eeed  (Tex.  Civ.  App.),  49  S.  W.  262 86,  141 

Attaway  v.  Carter,  1  U.  C.   77 69 

Aulenier  v.   Governor,   1   Tex.   666 238 

Ayeoek  v.  Kinibrough,  71  Tex.  333,  10  Am.  St.  Rep.  743,  12  S.  W. 

71 39,139 

Bailey  v.  Trammell,  27  Tex.  328 83,  130 

Baird  v.  Evans,  58  Ga.  350 168,  237 

Baker  v.  Westcott,  73  Tex.  129,  11  S.  W.  157 

43,  115,  219,  316,  413,  425 

Baldwin  v.  Rifdiardson,  33  Tex.  16 167 

Ballard  v.   Carmiehaei,  83  Tex.  355,   18  S.  W.   734 

108,  147,  228,  239,  345 

Ballard  v.  Perry,  28  Tex.  347 72,   136,   167 

Banning  v.  Banning,  80  Cal.  271,   13   Am.   St.  Rep.   156,  22  Pac. 

210 56 

Barnes  v.  .Jamison,  24  Tex.  365 88 

Barnet  v.  Barnet,  16  Am.  Dee.  520,  note 414 

Barrett  v.  Barrett,  120  N.  C.  127,  26  S.  E.  891,  36  L.  R.  A.  226.  .   414 

Bassett  v.  Martin,  83  Tex.  341,  18  S.  W.  857 40 

Baxter  v,  Howell  (Tex.  Civ.  App.),  26  S.  W.  453 236 

Baylor  v.  Tillebaek,  20  Tex.  Civ.  App.  490,  49  S.  W.  721 

89,   94,  201,   202 

Beaty  v.  Whitaker,  23  Tex.  526 22,  29,  34,  45,  92,  193 

(xliii) 


xliv  TABLE   OF  CASES. 

[The  Eeferences  are  to  Pages.] 
Beaumont  Pasture  Co.  v.  Preston  &  Smith,  65  Tex.  456 

25,  30,  58,  66,  91,  193,  241,  326,  328,  390,  413,  421 

Beitel  v,  Wagner,  11  Tex.  Civ.  App.  365,  32  S.  W.  367 73 

Belbaze  v.  Ratto,   69  Tex.  638,  7  S.  W.  501 79 

Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Rep.  267 

43,  79,  98,  120,  131,  134,  137,  177,  191,  209,  286 

Bennett  v.  Viri-inia  Ranch  etc.  Co.,  1  Tex.  Civ.  App.  321,  21  S.  W. 

128 38 

Bernier  v.  Becker,  37  Ohio  St.  72 •. 238 

Berry  v.  Childress,  32  Tex.  372 265,  277 

Berry  v.  Donley,  26  Tex.  737 

38,  107,  118,  131,  140,  145,  147,  275,  345 

Betts  V.  Simmons  (Tex.  Civ.  App.),  35  S.  W.  50 39 

Beville  v.  Jones,  74  Tex.  148,  11  S.  W.  1128 120 

Bexar  Bldg.  etc.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W. 

1080 37,  85,  140,  235,  411,  413,  415,  425 

Blencourt  v.  Parker,  27  Tex.  562 237,  238,  327 

Bierer  v.  FrQtz,  32  Kan.  329,  4  Pac.  284 236 

Biggerstaff  v.  Murphy,  3  Tex.  Civ.  App.  363,  22  S.  W.  768 88 

Birdseye  v.  Rogers  (Tex.  Civ.  App.),  26  S.  W.  841.. 43,  219,  316,  425 

Black  V.  Garner  (Tex.  Civ.  App.),  63  S.  W.  920 121 

Blackmore  v.  Dolan,  50  Ind.  194 294 

Blanton  v.  Ray,  66  Tex.  61,  17  S.  W.  264 89 

Blythe  v.  Houston,  46  Ttex.  67 68,  71,  193 

Boehl  v.  Hecker,  1  App.  Civ.  Cas.   761 69 

Bohn  V.   Davis,   75   Tex.   26,   12   S.   W.   837 160,  202 

Bosley  v.  Pease  (Tex.  Civ.  App.),  22  S.  W.  516 66 

Bounds  V.  Little,  75  Tex.  316,  12  S.  W.  1109 89 

Boykin  v.  Rosenfield  &  Co.,  69  Tex.  119,  9  S.  W.  318 38 

Brand   v.   Col.   S.   Co.,    70'  S.   W.   578 128 

Breen  v.  Tex.  etc.  Ry.  Co.,  44  Tex.  306. 286 

Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527 

55,  61,  67,  77,  87,   96,  120,  124,  128,  142,  231,  410,  434 

Bremer  v.  Case,  60  Tex.  151 89 

Breneman  v.  Mayer   (Tex.  Civ.  App.),  58  S.  W.  725 

134,    147,  152 

Brereton   v.   Bennett,   15   Colo.   254,   25   Pac.   310 236 

Broussard  v.  Dull,  3  Tex.  Civ.  App.  59,  21  S.  W.  937 

70,   78,   79,  138 

Brown   v.   Chancellor,   61    Tex.   437 261 

Brown   v.   Lunt,   37   Me.   423 238 

Brown  v.  Moore,   38   Tex.   646 234,  236 

Brown  v.  State,  43  Tex.  478 299,  328,  335,  338,  340,  426 

Brownson  v.  Scanlan,  59  Tex.  222 52,  66,  77 

Broxson   v.   MeDougal,   63   Tex.   197 25,  28 

Bryan  v.  Sundberg,  5  Tex.  423 

49,  251,  262,  273,  281,  287,  332,  346,  362,  371,  373 


TABLE  OF  CASES.  xlv 

[The  References  are  to  Pages.] 

Bull  V.  Coe,  77  Cal.  54,  11  Am.  St.  Rep.  235,  18  Pac.  808 120 

Bullene  v.  Garrison,  1  Wash.  Ter.  587 238,  327 

Burkett   &   Murphy  v.   Scarborough,   59   Tex.   499 119,  133 

Buse  V.  Bartlett,  1  Tex.  Civ.  App.  335,  21   S.  W.  52 281 

Butler  V.  Brown,  77  Tex.  344,  14  S.  W.  136 81 

Butler  V.   Dimagan,   19  Tex.   559 

21,  43,  200,   238,  271,  331,   354,  390,  415 

Byrnes  v.  Sampson,  74  Tex.  83,  11   S.  W.  1073 259,   283,  286 

Cain  V.   State,   20   Tex.   362 262 

Cairrell  v.  Higgs,  1  U.  C.  56 158,  165,  172,  189,  201 

Callahan   v.  Houston,  78  Tex.  497,   14  S.  W.   1027 113,  147 

Callahan  v.  Patterson,  4  Tex.  65,  51  Am.  Dec.  712 113,  147 

Canypbell  v.  Wilcox,  10  Wall.   (U.  S.)   421,  19  L.  ed.  973 436 

Cannon  v.  Boutwell,   53  Tex.  627 110,  226,  230,  232 

Cannon  v.  Hemphill,   7   Tex.   208 286 

Carclwell  v.  Eogers,  76  Tex.  37,  12  S.  W.  1006 232 

Carolan    v.    McDonald,    15    Tex.    329 261,  282 

Carothers  v.  Covington   (Tex.  Civ.  App.),  27  S.  W.  1041 

7,   10,   14,  436 

Carpenter  v.  Dexter,  75  U.  S.  (8  Wall.)  513,  19  L.  ed.  426 

95,  168,  220,  309,  311 

Carpenter  v.   Snelling,   97    Mass.   452 437 

Carrier  v.  Hampton,  11  Ired.  307 167" 

Cartwell  v.  Rogers,  76  Tex.  374,  13  S.  W.  474,  8  L.  R.  A.  180.  ..  .    110 
Cassidy  v.  Scottish  Am.  Mort.  Co.,  27  Tex.  Civ.  App.  211,  64  S. 

W.    1031 83 

Caudle  v.  Williams   (Tex.  Civ.  App.),  15  S.  W.  562 14,  208 

Cavasas  v.   Gonsales,  33   Tex,   134 437 

Cavit  V.  Archer,  52  Tex.  169 79,  167 

Central  V.  Tel.  Co.  v.  Falley,  118  Ind.  194,  10  Am.  St.  Rep.  135, 

20  X.  E.  145 •'j'5 

Chamberlain   v.   Pybus,   81   Tex.   511,   17   S.   W.   50 68,  208 

Chambers  v.  Fisk,  22  Tex.  536 7,     14 

Chambers   v.    State,   25   Tex.   307 152 

Chapman   v.   Allen,  15  Tex.   282 408 

Chartier  etc.  Co.  v.  McNamara,  72  Pa.  St.  336,  13  Am.  Rep.  680 

436 

Cheek  v.  Bellows,  17  Tex.  617,  67  Am.  Dec.  686 38 

Cheek  v.  Herndon,  82  Tex.   14«,  17   S.  W.  763 75,  83,  130 

Chester  v.  Brcitling  (Tex.   Civ.  App.),  30  S.  W.  465 61,  123 

Chicago   etc.   Ry.    Co.   v.   Titterington,   84   Tex.   219,   31   Am.   St. 

Rep.  39,  19  S.  W.  472 239,  277,  283,  388,  394,  403 

Christy  v.  Alford,  17  How.  604,  15  L.  ed.  2o6 281 

Citizens'  etc.  Parish  v.  Williams,  49  La.  Ann.  422,  21  South.  647, 

37    L.    E.    A.    761 263,277 

City  Bank  v.  Radtke,  87  Iowa,  363,  54  N.  W.  435 236 


xlvi  TABLE   OF  CASES. 

[The  References  are  to  Pages.] 

City  of  Laredo   v.   Martin,  52   Tex.  562 275,   291.   ?,U,  ?A3 

Clapp  V.  Engledow,  82  Tex.  296,  18  S.  W.  146 37,  94.  107.  201,  203 

Clark  V.  Finley,  93  Tex.  171,  54  S.  W.  343 2S3 

Clark  V.  Groce,  16  Tex.  Civ.  App.  453,  41   S.  W.  668 

79,   132,   134,  143 

Clark   V.   Sanderson,   3   Binn.    (Pa.)    192,  5   Am.  Dec.  368 201 

Clark  V.  AVickor    (Tex.   Civ.  App.),  30   S.  W.   1114 124,  231 

Clay  V.  Holbert,  14  Tex.  189 3,  7,  11,  14,  9S,  160 

Clayton   v.   Frazer,   33   Tex.   99 113 

Clayton   v.  Eelim,  67   Tex.   53 28 

Clements   v.   San   Antonio,   34   Tex.   26 58 

Cocke  V.  Halsey,  16  Pet.   (U.  S.)   71,  10  L.  ed.  891 238 

Coflfey  V.  Hendricks,  66  Tex.  677,  2  S.  W.  47 

37,  58,  69,  72,  86,  90,  96,  US,  136.  208 

Cole   V.   Bammell,    62    Tex.    Ill 

38,  85,  87, 

113,  115,  119,  128,  139,  142,  143,   145,  147,  256,  265,  271,  275,  306 

Coltrane  v.  Lamb,  109  N.  C.  209,  13  S.  E.  784 240 

Commonwealth  v.  Kenneson,  143  Mass.  418,  9  N.  E.  761 294 

Cook  V.  Cook,  5  Tex.  Civ.  App.  30,  23  S.  W.  927 182 

Cook  V.  First   Nat.  Bank    (Tex.   Civ.   App.),  33   S.  W.   999 191 

Cook  V.  Foster,  96  Mich.  610,  55  N.  W.   1019 236 

Cook   V.   Knott,   28   Tex.   90 239,   250,   283,  388 

Coombes  v.  Thomas,  57  Tex.  322 79,  121,  132,  138,  143 

Coombs  V.   State,  38  Tex.  Cr.  648,  44  S.  W.  858 261,  282,  283 

Cooper  V.  Hamilton,  56  Am.  St.  Eep.   801,  note 234 

Copelin  v.  Sehuler  (Tex.),  6  S.  W.  670 76 

Coryell   v.   Holmes,   2   U.   C   674 165,  423 

Cowan  V.  Williams,  49  Tex.  395 26,  98,  159,  160 

Cowley  V.  Town  of  Eushville,  60i  Ind.  327 294 

Cox  V.  Enst  (Tex.  Civ.  App.),  29  S.  W.  807 89,  94,  175,  202,  203 

Crabtree  v.  Whiteselle,  65  Tex.  Ill 68 

Craddock  v.  Merrill,  2  Tex.  495,  496 165,  201,  221 

Crain  v.  Huntington,  81  Tex.  614,  17  S.  W.  243 14,  89,  94,  412 

Cravens  v.  Booth,  8  Tex.  243,  58  Am.  Dec.  112 '. 140 

Crayton  v.  Hamilton,  37   Tex.  269 388,   390,   417,  421 

Cross  V.   Evarts,  28  Tex.   532 38,  113,   118,   275,  432 

Dailey  v.  Coker,  33  Tex.  817,  7  Am.  Eep.   279 437 

Dalton  V.  Eust,  22   Tex.   151 139 

Daniels  v.  Creekmore,  7  Tex.  Civ.  App.  573,  27  S.  W.  149 

14,  89,  412 

Daniels   v.   Larendow,    49    Tex.    216 236 

Daugherty  v.  Yates,  13  Tex.  Civ.  App.  647,  35  S.  W.  937 

207,    210,  343 

Davidson  v.   State,   135  Ind.   254,   34  N.   E.   972 238 

Davidson   v.  Wallingsford,   88  Tex.   623,   32   S.   W.   1030 

72,   122,   135,  174 


TABLE  OF  CASES.  xlvii 

[The  References  are  to  Pages.] 

Davis  V.  Agiiew,  67  Tex.  206,  2  S.  W.  43,  376 210,  412 

Davis  V.  Agnew,  67  Tex.  210,  2  S.  W.  43,  376 85,  121,  135,  140 

Davis  V.  Kennedy,  58  Tex.  516 85,  87,  128,  142 

Davis  v.  McCartney,  64  Tex.  585 121,  134 

Davis  v.  Pearson.  6  Tex.  Civ.  App.  593,  26  S.  W.  241 423 

Davis  V.  Rankin,  50  Tex.  286 226 

Davis  V.  Roosevelt,  53  Tex.  314 211 

Davis  V.  State,  7  Md.  151,  61  Am.  Dec.  331 262,  283,  286 

Dean   v.   Gibson    (Tex.   Civ.   App.),   48  S.  W.   57 40 

Deen    v.    Wills,   21    Tex.    645 

43,  98,  103,  120,  131,  133,  166,  173,  175,  177,  181,  182,  191 

De  /^eon  v.  White,  9  Tex.  600 18,  35,     92 

De/inis  v.  Sanger,  15  Tex.  Civ.  App.  411,  39  S.  W.  998 40 

Dickinson  v.  State,  38  Tex.  Cr.  Rep.  479,  41  S.  W.  760... 261,  262,  281 
Dobbin   v.   Cordiner,   41    Minn.    165,   16   Am.   St.   Rep.   683,   42   IN. 

W.  870,  4  L.  R.  A.  333 161,  165 

Donovan  v.  St.  Anthony  etc.  El.  Co.,  8  N.  Dak.  585,  73  Am.  St. 

Rep.  779,  80  N.  W.  772,  46  L.  R.  A.  721 171 

Dorn   V.  Best,   15   Tex.   62 78,   138,   166,   173,   176 

Dowell    V.    Applegate,   7   Fed.   881 436 

Downing  v.  Diaz,  80  Tex.  436,  16  S.  W.  49 5 

Downs  V.  Porter,  54  Tex.  59 166,   174,  175 

Driscoll  V.  Morris,  2  Tex.  Civ.  App.  603.  21  S.  W.  629,  1053 

72,   122,   173,   182 

Durst  v.  Dougherty,  SI  Tex.  650,  17  S.  W.  388 79,  137 

Eborn   v.   Zimpleman,   47   Tex.   518,   26   Am.  Rep.   315 202 

Edens  v.  Simpson  (Tex.),  17  S.  W.  788 119,  133 

Edrington  v.  Mayfield,  5  Tex.  367 124 

Edwards  v.   Dismukes,  53  Tex.  605 88 

Edwards  v.  James,  7  Tex.  377 18,  29,  34,  45,  92,  100,  101,  161,  164 

Elliott  V.  Peirsol,  1  Pet.  328,  7  L.  ed.  164 409 

Ellis  V.  Batts,  26  Tex.  704 275,  291,  311,  313 

Elwood  V.  Elock^  13  Barb.  50 409 

Kmanuel  v.  Gates,  53  Fed.  775 90 

Emigh  V.  State  Ins.  Co.,  3  Wash.  122,  27  Pac.  1063 294 

English  V.  Helms,  4  Tex.  231 213 

Ennis   v.   <  'rump,   6   Tex.   35 28 / 

Equitable  Mortgage  Co.  v.  Kempner,  84  Tex.  102,  19  S.  W.  358..   209 
Estes  V.  Turner,  30  Tex.  Civ.  App.  365,  70  S.  W.  1009..  132,  133,  135 

Etheridgo  v.  Price,  73  Tex.  602,  11  S.  W.   1039 39 

Ktter  V.  Mo.  Pac.  Ry.  Co.,  2  Tex.  Civ.  App.  58 282 

Ewing  V.  Vanncwitz,  8  Mo.   App.   602 236 

Ex  parte   Burkhanlt,   16   Tex.   470 :''61 

Ex  parte  Fagg,  38  Tex.  Cr.  App.  573,  44  S.  W.  294,  40  L.  R.  A. 

•jio 286 


xlviii  TABLE  OF  CASES. 

[The  Eeferences  are  to  Pages.] 
Farmers'  Bank  v.   Chester,  (i   Tluiiiph.    (Tenn.)   458,  44  Am.  Dec. 

318 238 

Farrell  v.  Palestine  Loan  Assn.  (Tex.  Civ.  App.),  30  S.  W.  815.  .74,  81 

Fayette  Co.  v.  Faires,  44  Tex.  514 287,  360 

Fearn  v.  Beirne,  129  Ala.  453,  29  Soutli.  558 235 

Ferguson  v.  Eieketts  (Tex,  Civ.  App.),  55  S.  W.  975 78,  79,  227 

First  Nat.  Bank  v.  Hicks,  24  Tex.  Civ.  App.  269,  59  S.  W.  842 

68,     74 

First  Nat.  Bank  of  Harrisonburo-  v.  Paul,  75  Va.  594,  40  Am.  Eep. 

740 409 

Fisher  v.  Butcher,  19  Ohio,  406,  53  Am.  Dec.  436 60 

Fisher  v.  Vaughn,  75  Wis.  609,  44  N.  W.  831,  833 221 

Fitzgerahl   v.   Turner,  43   Tex.   87 118,   132,   140,   147 

Flemming  v.  Keed,  37  Tex.  152 46,  79,  99,  166 

Florida  Sav.  Bank  etc.  Exch.  v.  Eivers,  36  Fla.  575,  18  S.  W.  850 

235 

Fogg  V.  Holcomb,  64  Iowa,  621,  21  N.  W.  Ill 221 

Forbes  v.  Thamas  (Tex.  Civ.  App.),  51  S.  W.  1097 

86,   96,   117,   127,   142 

Fordtrau  v.  Perry   (Tex.  Civ.  App.),  60  S.  W.  1000 40 

Franco-Texan   Land   Co.   v.   Laigle,   59   Tex.    344 238 

Frank  v.  Frank  (Tex.  Civ.  App.),  25  S.  W.  819 37 

Fraziu  v.  Moore,  11  Tex.   755 201 

Freeman  v.  Preston  (Tex.  Civ.  App.),  28  S.  W.  495 135 

Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App.  263,  27  S.  W.  151 

118,127,140 

French   v.   Strumberg,   52    Tex.   93 124 

Frizzell  v.  .Johnson,  30   Tex.   32 239,   250,   283,   388 

Frost  V.  Erath  Cattle  Co.,  81  Tex.  510,  26  Am.  St.  Eep.  831,  17 

S.   W.   52 73 

Frost  V.  Wolf,  77  Tex.  460,  19  Am.  St.  Eep.  761,  14  S.  W.  440.  .  . 

26,   29,   39,   92,   212,   227 

Fullerton  v.  Doyle,  18  Tex.  13 38 

Fulton   V.   Bayne,   18   Tex.   50 232 

Gainer  v.  Cotton,  49  Tex.  114 

14,  25,  27,  28,  29,  34,  45,  91,  92,  100,  161,  168,  193,  200,  201 

Gaines  v.  Ann,  26  Tex.  341 200 

Galveston  etc.  Ey.  Co.  v.  Matula,  79  Tex.  581,  15  S.  W.  573 408 

Galveston  S.  &  N.  G.  E.  E.  Co.  v.  Gross,  47  Tex,  435 

263,  274,  368,  371,  379 

Gamble  v.  Butchee,  87  Tex.  643,  30  S.  W.  862 171,  172,  189 

Garcia  v.  Illg,  14  Tex.  Civ.  App.  482,  37  S.  W.  472 113,  123,  230 

Garton  v.  Hudson-Kimberly  Pub.  Co.,  8  Okla.  631,  58  Pac.  946 263 

Gibson  v.  Norway  Sav.  Bank,  69  Me.  579 237 

Giddings  v.  Antonia,  47  Tex.  556,  26  Am.  Eep.  321 286 

Gilbough  V.  Stahl  Bldg.  Co.,  16  Tex.  Civ.  App.  448,  41  S.  W,  535.  .     40 


TABLE  OF  CASES.  xlix 

[The  Referenres  are  to  Pages.] 

Gillelaud  v.   Drake,   36   Tex.   676 261,   328,   335,  337 

Gleun  V.  Ashcrof t,  2  U.  C.  449 328 

Goff  V.  Jones,  70  Tex.  575,  8  Am.  St.  Kep.  619,  8  S.  W.  525 121 

Gonsales  v.  Eoos,  120  U.  S.  605 7,  14 

Goodykoontz  v.  Olsen,  54  Iowa,  174,  6  N.  W.  263 238 

Grant  v.  Olliver,  91   Cal.  158,  27  Pac.  596,  861 67 

Gray  v.  Kaufman,  82  Tex.  69,  17  S.  W.  513 74,  81,  82,  132,  138 

Gray  v.  Shelby,  83  Tex.  407,  18  S.  W.  809 86,  141,  433 

Green  v.  Holway,  101  Mass.  243,  3  Am.  Eep.  339 486 

Green  v.  Hugo,  81  Tex.  457,  26  Am.  St.  Rep.  824,  17  S.  W.  79.  .40,  97 

Green,  v.  Eugley,  23  Tex.  548 360 

Greenwood  v.  Fontaine   (Tex.   Civ.  App.),  34  S.  W.  828 423 

Gregg  &  Co.  v.  Fitzhugh,  36  Tex.  128 437 

Gregory  v.  Van  Vleck,  21  Tex.  41 147 

Griffin  v.  Eanny,  35  Conn.  239 437 

Griffith  V.  Ventress,  11  L.  E.  A.  193,  note 409 

Grimes  v.  Bastrap,  26  Tex.  312 10,  160 

Groesbeck  v.  Bodman,  73  Tex.  292,  11  S.  W.  322 

106,   107,   118,    119,    132,   144 

Grounds  v.  Ingram,  75  Tex.  514,  12  S.  W.  1118 38 

Grove  v.  Todd,  41  Md.  633,  20  Am.  Eep.  76 414 

Guilford   v.  Love,  49  Tex.   735 361 

Gulf  Coast   etc.   Ey.  v.   Carter,  5   Tex.   Civ.   App.   675,  24   S.  W. 

1083 70 

Gulf,  Col.  &  S.  F.  E.  E.  Co.  v.  Carter,  5  Tex.  Civ.  App.  678,  24 

S.  W.  1083 327 

Gulf  etc.  Ey.  Co.  v.  Eambolt,  67  Tex.  657,  4  S.  W.  356 265,  278 

Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  912 

16,  61,  67,  106,  107,  115,  123,  231,  409 

Halbert  v.  Brown,  9  Tex.  Civ.  App.  335,  31  S.  W.  535 110,  226 

Halbert  v.  De  Bode,  15  Tex.  Civ.  App.  615,  40  S.  W.  1011 88 

Halbert  v.  Hendrix  (Tex.  Civ.  App.),  26  S.  W.  911,  912 61 

Hall  V.  Redson,  10  Mich.  21 237 

Hamilton  v.  Pitcher,  53  Mo.  334 238,  327 

Hamman   v.   Krig\\'in,   39   Tex.   42 89 

Hampshire  v.  Floyd,  39   Tex.   105 147 

Hanley   v.   Gandy,   28   Tex.   211,   91   Am.   Dec.   315 191,  202 

Hanrick  v.  Cavanaugh,  60  Tex.  19 4,  5,  9,  11,  12,  16 

Hanrick  v.  Dodd,  62  Tex.  87 4,  11 

Hanrick   v.   Hanrick,   61   Tex.   601 261 

Hardin  v.  Sparks,  70  Tex.  431,  7  S.  W.  769 171,  189 

Harlowe  v.  Hudgins,  84  Tex.  109,  31  Am.  St.  Eep.  21,  19  S.  W. 

364 78 

Harmon  v.  McGee,  57  Miss.  410 408 

Harper   v.   State,   109   Ala.   89,   19   South.   857 294 

Harris  v.  Cato,  26  Tex.  339 213 


1  TABLE   OF  CASES. 

[The  Keferences  are  to  Pages.] 
Harris  v.  Hoskins,  2  Tex.  Civ.  App.  4S6,  22  S.  W.  251,  252 

172,    188,    189 

Harris  v.  Wells,  85  Tex.  312,  20  S.  W.  68 38 

Harrison  v.  Boring,  44  Tex.  263 89 

Harrison  v.  Knight,  7  Tex.  47 49 

Hartley  v.  Frosh,  6  Tex.  208,  55  Am.  Dec.  772 86,  141 

Harvey  v.  Cummiugs,  68  Tex.  599,  5  S.  W.  513 175 

Harvey  v.  Hill,   7   Tex.  591 

16,  25,  31,  72,  79,  101,  106,  107,  119,  132,  173,  238 

Harvey    v.    Thorpe,    65    Am.    Dec.    346 203 

Hatch  v.  Dunn,  11   Tex.   715 32 

Hatchett  v.  Connor,  30  Tex.   108 13,  16,  27,  29,  30,  92 

Hawley  v.  Bullock,  29  Tex.  222 25,   27 

Hayden  v.  Moflfett,  74  Tex.  650,  15  Am.  St.  Rep.  866,  12  S.  W. 

820 37,    135,    210,412 

Hays  v.  Tilson,  18  Tex.  Civ.  App.  610,  45  S.  W.  479 76,  77,  79 

Heidenheimer  v.  Thomas,  63  Tex.  287 124 

Heintz  v.  O'Donnell,  17  Tex.  Civ.  App.  21,  42  S.  W.  797.  .79,  82,  97 
Heintz  v.  Thayer,  92  Tex.  658,  50  S.  W.  930,  51  S.  W.  640.  .89,  94,  202 

Helena  First  Nat.  Bank  v.  Roberts,  9  Mont,  323,  23  Pac.  718 237 

Henderson  v.  Pilgrim,  22  Tex.  476 25 

Henderson  v.  Terry,  62  Tex.  2.82 86,  88,  141 

Henke  v.   Stacy,  25  Tex.  Civ.  App.  272,  61   S.  W.   511 59,  60,  69 

Herndon  v.  Cassiasso,  7  Tex.  324 18,  23,  30 

Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665 

239,   251,   261,   273,   282,   291,   296,   298,   313, 

315,  321,  322,  332,  346,  347,  360,  362,  363,  370,  373,  378,  383,  401 
Herring  v.  White,  6  Tex.  Civ.  App.  249,  25  S.  W.   1017 

86,   120,   141,  433 

Hess  V.  Trigg,  8  Okla.  286,  57  Pac.  159 263 

Hicks  V.  Roos,  71  Tex.  360,  9  S.  W.  315 38 

Hill   V.    Moore,    62    Tex.    610 88 

Hill  V.  Smith,  6  Tex.  Civ.  App.  312,  25  S.  W.  1080.. 72,  81,  122,  182 

Hill  v.  Taylor,  77  Tex.  295,  14  S.  W.  366 37,  93,  221 

Hines  v.  Lmmpkin,  19  Tex.  Civ.  App.  556,  47  S.  W.  818 72 

Holdeman  v.  Knight,  Dall.  568 227 

Holden  v.  State,  1  Tex.  App.  242 282 

Holladay  v.  Dailey,  86  U.  S.  (19  Wall.)  606,  22  L.  ed.  187 226 

HoUiday  v.  (Jromwell,  26  Tex.  188 

35,  46,  48,  98,  100,  102,  163,  166,  177,  178,  200,  354,  422 

Hollis  V.  Dashiell,  52  Tex.  187 190 

Holmes   v.   Coryell,   58   Tex.   685 165,   200 

Hooper  v.  Hall,  35  Tex.  85 13,  16,  26,  28,  32 

H.  &  L.  C.  Ry.  Co.  v.  Ford,  53  Tex.  370 275 

Hope    V.    Sawyer,    14    111.    254 240 

Horback  v.  Tyrrell,  48  Neb.  131,  67  N.  W.  485 235 

Horton  v.  Col.  Bldg.  etc.  Assn.,  6  Week.  Law  Bull.  (Ohio)  141..   235 


TABLE  OF  CASES.  li 

[The  References  are  to  Pages.] 

Horton  v.  Crawford,  10  Tex.  390 281 

Houston  V.  Blythe,  60  Tex.  513 28 

Houston    V.    Jordan,    82    Tex.    253 12 

Houston   V.   Perry,   5   Tex.   464 18 

Houston  V.  Eobertson,  2  Tex.  18 203 

Houston  etc.  Ey.  Co.  v.  Ford,  53  Tex.  371 263 

Howard  v.  Colquhoun,  28  Tex.  134 233 

Howard  v.  Kellam  (Tex.),  8  S.  W.  96 60 

Hubert  v.  Bartlett,  9  Tex.  102 28,  32,  93.  133,  419 

Hurst  V.  Finley,  22  Tex.  Civ.  App.  605,  54  S.  W.  1072 96,  127,  142 

Hurst  V.  Finley,  22  Tex.  Civ.  App.  605,  55  S.  W.  388 

72,  73,  117,  122,  135,  152 

Hussey  v.  Moser,  70  Tex.  45,  7  S.  W.  606 40 

Hutchins  v.  Bacon.   46   Tex.   415 7,  25,   26,  92 

Ikard  v.  Thompson,  81  Tex.  291,  16  S.  W.  1019 38 

Illg  V.  Garcia  (Tex.  Civ.  App.),  37  S.  W.  472,  45  S.  W.  857,  47  S. 

W.  717,  92  Tex.  252 230 

lilies  v.  Frerichs,  11  Tex.  Civ.  App.  575,  32  S.  W.  915 89 

Irion  v.  Mills,  41  Tex.  310 231 

Jacks  V.  Dillon,  6  Tex.  Civ.  App.  192,  25  S.  W.  645 40 

Jackson  v.  Waldron,  13  Wend.  178 167 

Jackson  v.  Waldstein,  10  Tex.  Civ.  App.  156,  30  S.  W.  47 89 

Jester  v.   Steiner,  86  Tex.  420,  25   S.   W.  411 202 

Johnson  v.  Bryan,  62  Tex.  623 38,  113,  119 

Johnson  v.  Franklin   (Tex.  Civ.  App.),  76  S.  W.  611 174 

Johnson  v.  Luford,  9  Tex.  Civ.  App.  85,  29  S.  W.  57 89 

.Johnson   v.   Taylor,   60   Tex.   361 37,   38,   84,   114, 

116,  119,  129,  133,  140,  145,  147,  200,  210,  411,  412,  413,  429 
Johnson   v.   Thompson    (Tex.   Civ.   App.),   50   S.   W.   1057 

72,  76,  78,  98,  122,  131,  134,  136,  143,  177,  191 

Jones  V.  Goflf,  63  Tex.  253 110,  111,  121,  124,  232 

Jones  V.  Montes,  15  Tex.  351 7,  14,  436,  438,  442 

Jones  V.  Muisbach,  26  Tex.  237 5,  13 

Jones  V.  Porter,  59  Miss.  628 236,  237 

Jones  V.  Eobbins,  74  Tex.  615,  12  S.  W.  824 

110,  111,  119,  121,  138,  166,  173,  175,  226,  232 

Jourdan  v.  Jourdaii,  9  Serg.  &  E.  268,  11  Am.  Dec.  724 83 

Keeney  v.  Leas,  14  Iowa,  464 327 

Kimball   v.  Johnson,  14  Wis.  674 236,  237 

Kimmarle  &   Ilirsli  v.   II.  &  T.  C.  Ey.  Co.,  76  Tex.  692,  12  S.  W. 

698 230 

Kincaid  v.  Jones,  2  U.  C.  534 118,  206 

King  v.   Haley,  75  Tex.  169,  12  S.  W.  1112 135 

King  v.  Eussell,  40  Tex.  130 83,  96,  142,  209 


lii  TABLE  OF  CASES. 

[The  References  are  to  Pages.] 

Koc.nirok   v.  jMinak,  54  Tex.  205,  33  Am.  Rep.  623 141 

Kuniiieiiaeiser    v.    .Timcker,    28    La.    Ann.    678 327 

Kuteh   V.   lloUey,   77   Tex.   220,   14  S.  W.   32 236 

Lambert  v.  Weir,  27  Tex.  364 16,  31,  92,  281 

Lang  V.  Dougherty,  74  Tex.  229,  12  S.  W.  29 189 

Langton    v.    Marshall,   59   Tex.    297 119,  133 

Laugton  v.  Marshall,  59  Tex.  299 107,  144,  344,  345 

Leach  v.  Dodson,  64  Tex.  189 116,  210,  277,  412 

Lecomte  v.  Tondonze,   82   Tex.   213,  27   Am.   St.   Rep.   870,   17  S. 

W.  1047 39 

Lee  V.  Wharton,  11  Tex.  74 32,  93,  419 

Le  Gierce  v.  Moore,  59  Tex.  473 124 

Leland   v.   Eckert,   81   Tex.   229,   16   S.   W.   897 75 

Leon  H.  Blum  Land  Co.  v.  Dunlap,  4  Tex.  Civ.  App.  315,  23  S. 

W.  473 227 

Lewis  V.  Aylott,  45  Tex.  201 170,  189 

Lewis  V.   Cole,  60  Tex.  341 88 

Lindley  v.  Lindley,  92  Tex.  446,  49  S.  W.  573,   (Tex.  Civ.  App.) 

50  S.  W.   159 73,   122,  123 

Linton  v.  National  L.  Ins.  Co.,  104  Fed.  '584 437 

Little  V.  Weatherford,  63  Tex.  639 74 

Livingston  v.  Jones,  Harr.  (Mich.)   165 432 

Livingston  v.  Kettelle,  41  Am.  Dec.   168,  note 

58,  59,  69,  76,  77,  82,  98,  131,  132,  134,  135,  177,  241 

Locke   v.   Huling,   24   Tex.   313 239 

Loftin  V.  Nally,  24  Tex.  574 200 

Looney   v.    Adamson,    48    Tex.    619 

38,  70,  83,  113,  129,  130,  131,  200,  327,  411 

Louisville  etc.  Ry.  Co.  v.  City  of  East  St.  Louis,  134  111.  656,  25 

N.   E.    962 294 

Lovett   V.   Casey,   17   Tex.   596 263,  274 

Lucas  V.  Larkin,  85  Tenn.  355,  3  S.  W.  647 67 

Lynch    v.    Livingston,    6    N.    Y.    422 237 

Lyttleton   v.   Giddings,   47   Tex.    114 27 

Macey  v.  Stark,  116  Mo.  481,  21  S.  W.  1094 238 

Manley  v.  Culver,  20  Tex.  143 163 

Mapes   V.   Leal,   27   Tex.   349 201 

Markle  v.   Scott,   2  App.   Civ.   Cas.   674 68 

Martin  v.  Burns,  80  Tex.  678,  16  S.  W.  1072 361 

Martin  v.  McAdams,  87  Tex.  225,  27  S.  W.  255 170,  171,  172,  189 

Martin   v.  Parker,   26  Tex.   258 5,  8,   10,   11,     13 

Marx  V.  Hanthorn^  30  Fed.  579 226 

Masterson  v.  Harris   (Tex.   Civ.  App.),  83   S.  W.  429 135,  201 

Masterson  v.  Todd,  6  Tex.  Civ.  App.  131,  24  S.  W.  682 206 

McCammon  v.  Beaupre,  25  TJ.  C.  Q.  B.  419 221 


TABLE  OF  CASES.  liii 

[The  References  are  to  Pages.] 

McCartee   v.   Orphan   Asylum   Soc,   18   Am.   Dec.   542 262 

McCarty  v.  Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100 

5,  13, 

16,  25,  29,  32,  48,  91,  92,  100,  101,  102,  160,  161,  163,  178,  193,  241 

McCelvey  v.   Cryer   (Tex.  Civ.  App.),  28   S.  W.  691 

251,  260,  271,  273,  291,  313,  316, 

322,;j26,  331,  332,   346,  354,  357,  362,  383,  413,  415,  417,  421,  425 
McCullough  Land  and  Cattle  Co.  v.  Whitiford',  21  Tex.  Civ.  App. 

314,   .50   S.   W.   1043 226,  227 

MeDaniel  v.  Garrett,  11  Tex.  Civ.  App.  57,  31  S.  W.  721 118,  132 

McDaniel    v.    Harold,    1    U.    C.    521 

115,   119,   137,  349,  374,  380,  402,  427 

McDaniel  v.  Needham,  61  Tex.  272 76,  79,  164,  168,  172,  175 

McDonald  v.  Morgan,  27  Tex.  505 35,  70,  390,  417 

McFaddin  v.  Preston,  54  Tex.  407 37,   90,  200 

McKay  v.   Speak,   8   Tex.   396 76,     79 

McKeller  v.  Peck,  2  U.  C.  194 206,  210 

McKeller  v.  Peck,  39  Tex.  381 

67,  83,  96,   129,   142,  206,   238,  327,   328,   329,  407,  408 

McKenzie  v.  Jackson,  82  Ga.  SO,  8  S.  E.  77 221 

McKenzie  v.  Stafford,  8  Tex.  Civ.  App.  121,  27  S.  W.  790 75 

McKie  V.  Anderson,  78  Tex.  207,  14  S.  W.  576 72,  73,  122,  133,  174 

McKinney  v.  Matthews  (Tex.),  6  S.  W.  795 139 

McKissick  v.   Colquhoun,   18   Tex.   151 

4,   5,   8,   10,   11,   13,   18, 

20,   22,  26,   27,   34,  45,   91,   101,   161,   163,   164,   169,   193,  233,  240 

McLain  v.  Canales  (Tex.  Civ.  App.),  25  S.  W.  29 37 

McMahan  v.  McGraw,  26  Wis.  614 68 

McNeil  V.  O'Connor,  79  Tex.  229,  14  S.  W.  1058 75 

McNnlty  v.  Ellison  (Tex.  Civ.  App.),  71  S.  W.  670 134,  135 

McPhaiil  V.  Lapsley,  20  Wall.  286,  32  L.  ed.  344 6,     30 

Melllnger  v.  Houston,  68  Tex.  37,  3  S.  W.  249 413 

Merrett  v.  Yates,  71  111.  636,  23  Am.  Eep.  128 409 

Meuley  v.  Zeigler,  23  Tex.  93 160,  390 

Mexia  v.  Oliver,  148  U.  S.  664,  13  Sup.  Ct.  Rep.  754,  37  L.  od.  602 

110,   226,  232 

Miller  v.  Alexander,  13  Tex.  506 226 

Miller  v.  Yturria,  69  Tex.  552,  7  S.  W.  206 

87,  117,  127,  128,  141,  142,  277,  433 

Millikin  V.  Smoot,  71  Tex.  760,  10  Am.  St.  Rep.  813,  12  S.  W.  59.  .   408 

Mills  V.  Waller,  Dall.  419 * 

Minor  v.  Powers   (Tex.  Civ.  App.),  38  S.  W.  400 131,  208 

Missouri  Pac.  Ry.  Co.  v.  Parkhurst,  3  Tex.  App.  Civ.,  §  159.  .  .265,  278 
Mitchell  Co.  V.  City  Nat.  Bank,  91  Tex.  374,  43  S.  W.  880..  .263,  274 

Mitchell  V.  State,  19  Ind.  381 -'^ 

Monroe  v.  Arledge,  23  Tex.  480 

50,  51,  81,  82,  98,  131,  177,  181,  191,  263,  275,  291,  310,  311,  312,  379 


liv  TABLE  OF  CASES. 

[The  References  are  to  Pages.] 
Montgomery  v.  Honiberger,  IG  Tex.  Civ.  App.  28,  40  S.  W.  628.  . 

79,  121,  135,  137 

Moore  v.  Carson,  12  Tex.  66 221 

Moore  v.  Moore,  47  N.  Y.  467,  7  Am.  Eep.  468 436 

Moores  v.  Linnej^,  2  Tex.  Civ.  App.  293,  21  S.  W.  709 

120,  121,  133,  135,  137,  138 

Morris  v.  State,  62  Tex.  741 286 

Moses  V.  DibroU,  3  Tex.  Civ.  App.  457,  21  S.  W.  414 79,  80,  208 

Mullens  v.  Weaver,  57  Tex.  5 82,  137 

Muller  V.  Boone,  63  Tex.  93 228 

Mimcie  Nat.  Bank  v.  Brown,  112  Ind.  477,  14  N.  E.  358 206,  329 

Munger  v.  Baldridge,  41  Kan.  236,  13  Am.  St.  Eep.  373,  21  Pac. 

159 432 

Murphy  v.  Eeynaud,  2  Tex.  Civ.  App.  470,  21  S.  W.  991.  .40,  121,  135 

Newby  v.  Haltaman,  43  Tex.  314 89 

New  Hampshire  Land  Co.  v.  Tilton,  19  Fed.  73 238 

Newman  v.  Samuels,  17  Iowa,  528 409 

Newton  v.  Emerson,  66  Tex.  145,  18  S.  W.  348 39,  91 

Nichols  V.  Gordon,  25  Tex.  Supp.  112 83,  130,  209,  275,  432 

Nichols  V.  Hampton,  46  Ga.  253 236 

Nichols  V.  Stewart,  15  Tex.  235 82,  83,  130,  209 

Nicholson  v.  Gloucester  Charity  School,  93  Va.  101,  24  S.  E.  899.  .  235 

Nicholson    v.    Horton,    23    Tex.    51 28 

Nixon  V.  Post,  13  Wash.  181,  43  Pac.  23 237 

Nolan  V.  Moore,  96  Tex.  341 110,  410 

Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  430 

78,  84,  96,  119,  129.  133,  138,  142,  265,  277,  412,  429 

N.  Y.  etc.  Ey.  Go.  v.  Bridgeport  Traction  Co.,  65  Conn.  410,  29 

L.  E.  A.  368 263 


Olcott  v.  Ferris  (Tex.  Civ.  App.),  24  S.  W.  850. 
Overand  v.  Menczer,  83  Tex.  130,  18  S.  W.  301.  . 


Page  V.   Arnim,   29  Tex.   73 76,  79 

Parker  v.  Chancellor,  73  Tex.  475,  11  S.  W.  503 93,  118 

Parker  v.  Parker,  10  Tex.   86 286 

Parker  v.  Wood,  Call.  (Pa.)  436,  1  L.  ed.  312 238 

Paschal  v.  Perez,  7  Tex.  357,  358 

18,  29,  30,  34,  35,  46,  99,  100,  102,  161,  163,  169,  192,  233 

Pattou  V.  King,  26  Tex.  686,  84  Am.  Dec.  596 110,  226,  232 

Peak  V.  Brinson,  71  Tex.  311,  11  S.  W.  269 110,  226,  232 

Pence   v.  Arbuckle,  22  Minn.  417 60 

Penn  v.  Garvin,  56  Ark.  511,  20  S.  W.  410 236,  237 

People  V.  Board  of  County  Commissioners,  77  Hun,  372,  28  N.  Y. 

Supp.  871 293 

People  V.  Fromme,  35  N.  Y.  App.  Div.  459,  54  N.  Y.  Supp.  833.  .  .  437 


TABLE  OF  CASES.  Iv 

[The  References  are  to  Pages.] 

Peterson  v.  Lowrv,  4S  Tex.  412 58,  59,  69,  86,  96,  142,  241,  328 

Peterson  v.  McCauley  (Tex.  Civ.  App.),  25  S.  W.  829 88 

Phoenix  Assur.   Co.  v.  Fire  Department,  117  Ala.   631,   23   Soutli. 

843,  42  L.  E.  A.  469 263,  277 

Pierce  v.  Fort,  60  Tex.  464 85,   88,  141 

Pilancl  V.  Taylor,  113  N.  C.  521,  18  S.  E.  70 236 

Piper  V.  Chippewa  Iron  Co.,  51  Minn.  495,  599,  53  X.  W.  870 240 

Pool  V.  Chase.  46  Tex.  207 85,  88,  141 

Pool  V.  Jackson,  66  Tex.  382,  1  S.  W.  75 167 

Poor  V.  Boyce,  12  Tex.  447 107 

Powell  V.  Fealy,  49  111.  143 436 

Prescott  V.  Hayes,  42  X.  H.  56 238 

Price  V.  Horton,  4  Tex.  Civ.  App.  526,  23  S.  W.  501 408 

Pullum  V.  State,  78  Ala.  31,  56  Am.  Eep.  21 231 

Pyron  v.  Butler,  27  Tex.  271 90 

Qiiiulan  v.  Houston  etc.  Ey.  Co.,  89  Tex.  356,  34  S.  W.  738 293 

Eailway  Co.   v.  McEae,  82  Tex.  616,  27  Am.  St.  Eep.  926,  18  S. 

W.    672 168 

Eeagan   v.   Farmers'    Loan    and    Trust    Co.,    154   V.    S.   389,   392, 

38   L.   ed.   1021,   14  Sup.   Ct.   Eep.   1062 383 

Eeagan  v.  Holliman,  34  Tex.  412 110,  232 

Eemington  Paper  Co.  v.  O 'Dougherty,  81  X.  Y.  474 237 

Eheinstrom   v.    Cone,   26   Wis.    163,    7    Am.   Eep.    51 437 

Ehine  v.  Hodge,  1  Tex.  Civ.  App.  368,  21  S.  W.  140 113,  119,  133 

Eidgley  v.  Howard,  3  Harr.  &  McH.   (Md.)   321 344 

Eiley  v.  Pool,  5  Tex.  Civ.  App.  346,  24  S.  W.  85 175 

Eindskoff   v.    Malone,    74    Am.    Dec.    368 206 

Eiviere  v.  Wilkens  (Tex.  Civ.  App.),  72  S.  W.  610.  .  .168,  207,  212,  423 

Eobinson   v.   Mauldin,   11    Ala.   977 225 

Eogers  v.  Burchard,  34  Tex.  453,  7  Am.  Eep.  283 89 

Rogers  v.  Pettus,  80  Tex.  426,  15  S.  W.  1093 89 

Rogers   v.   Watrous,   8   Tex.   62,   58   Am.   Dec.   100 

49,  251,  262,  282,  332,  358,  362,   371,  373 

Eork  V.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032 

40,  73,  79,  80,  131,  134,  230 

Rose  v.  Xewman,  26  Tex.  135,  80  Am.  Dec.  646.239,  250,  283,  388,  394 
Rothschild  v.  Daugher,  8o  Tex.  333,  34  Am.  St.  Rep.  811,  20  S.  W. 

142,    16   L.    R.    A.    719 236 

Roussian  v.  Xorton,  53  Minn.  560,  55  X.   W.   747 60 

Roy  v.  Bremond,  22  Tex.  629 107,  432 

Ruis   V.   Chambers,   15   Tex.   587 10,   160 

Ruleman  v.  Pritchett,  56  Tex.  483 119,  133,  265,  413 

Runge  V.  Sabin   (Tex.  Civ.  App.),  30  S.  W.  568 118,  119,  133 

Russell   V.   Farquhar,   55   Tex.   361 371,   379 

Ryan  v.  Maxey,  43  Tex.   192 139 


Ivi  TABLE  OF  CASES. 

[The  References  are  to  Pages.] 

Salmon   v.  Huff,  SO  Tox.  133,   15  S.  W.   257,   1047 73 

Sample  v.  Irwin,  45  Tex.  573 189,  190,  191,  236 

San  Antonio  v.  Grandjean,  91  Tex.  435,  44  S.  W.  476 109 

Sartor  v.  Bolinger,  59  Tex.  411 6,  43,  66,  95,  219,  434 

Sawyer  v.    Cox,   63   111.    130 235,   237 

Schleicher  v.  Gatlin,  85  Tex.  273,  20  S.  W.  120 74 

Schleicher  v.  Pamge   (Tex.  Civ.  App.),  37  S.  W.  984 60 

Schneider   v.   Sansom,   62   Tex.   201,   50   Am.   Eep.   521 68 

Schollenberger   v.    Schollenberger,   96   U.   S.    369,   378,   24   L.   ed. 

853 382 

Sehrairm  v.  Gentry,  63  Tex.  583 66,  74,  81 

Scott    V.    Maynard,    Ball.    548 16 

Secrest  v.  Jones,  21  Tex.  123 18,  99 

Secrist  v.  Green,  3  Wall.   (U.  S.)   744,  18  L.  ed.  153 221 

Selman  v.  Wolf,  27  Tex.  72 262,  263,  274,  371 

Settegast  v.  Charpiot  (Tex.  Civ.  App.),  28  S.  W.  580 206,  221 

Shelby  v.  Bnj-tis,  18  Tex.  645 86,   141 

Sheldon  v.  Milmo,  90  Tex.  18-22,  36  S.  W.  413 5,  13,  14 

Shepherd   v.   Cnmmings,  44   Tex.   502 14 

Shipman  v.  Fnlcrod,  42  Tex.  249 437 

Shirbiirn    v.    Hunter,    21    Fed.    Cas.    No.    12,744 438 

Sileock  V.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939 

85,   235,   237,  412,  413,  415,  425 

Simpson  v.  Edens,  14  Tex.  Civ.  App.  235,  38  S.  W.  474 

14,   84,   89,   130,   204,   412 

Simpson  v.  Lovering,  3  Bush  (Ky.),  458,  96  Am.  Dec.  252 238 

Slack  V.  Dawes,  3  Tex.  Civ.  App.  520,"  22  S.  W.  1053 72,  122 

Sloan  V.  Thompson,  4  Tex.  Civ.  App.  426,  23  S.  W.  613 

51,  69,  72,  81,  122,  200,  201,  202 

S.  L.  &  S.  W.  Ey.  Co.  v.  Kay,  85  Tex.  559,  22  S.  W.  665.  .  .  .262,  373 

Small  V.  Field,  102  Mo.  104,  14  S.  W.  815 240 

Smith  V.  Adams,  4  Tex.  Civ.  App.  5,  23  S.  W.  49 160 

Smith  V.  Cavitt,  20  Tex.  Civ.  App.  558,  50  S.  W.  168 39 

Smith   V.   Elliott,   39   Tex.   209 121,   134,   138 

Smith  V.  Gillon,  80  Tex.  125,  15  S.  W.  794 75 

Smith  V.   Townsend,  Dall.  570 4,  29,  30,  91,  241 

Smith  V.  Ward,  2  Boot,  378,  1   Am.  Dec.  80 83 

Snow^den  v.  Kush,  69  Tex.  593,  6  S.  W.  767 66,  77 

Sowers  v.  Peterson,  59  Tex.  219 72,  81,  122,  135,  166,  168 

Stallings  V.  Hullum,  79  Tex.  421,  15  S.  W.  677 85,  140 

Stallings  v.  Hullum  (Tex.  Civ.  App.),  33  S.  W.  1033 231 

Starnes  v.  Beitel,  20   Tex.  Civ.  App.  524,  50  S.  W.   202 

61,  85,  129,  200,  409,  411,  412 

State  V.  Benton,  33  Neb.  834,  51  N.  W.  144 294 

State  V.  De  Leon,  64  Tex.  559 10,  160 

State  V.  Delesdenier,  7  Tex.  76 49,  346 

State  V.  L  &  G.  N.  E.  E.,  57  Tex.  550 261 


TABLE  OF  CASES.  Ivii 

[The  References  are  to  Pages.] 

State  V.   Masse}',  4  L.   B.   A.   309,  note 262,   277 

State    V.    McCracken,    42    Tex.    383 152 

State   V.   Purcell,   16   Tex.   307 354 

State  V.  Travis  Co.,  85  Tex.  445,  21  S.  W.   1029 262,  282 

Stebbins  v.  State,  22  Tex.  App.  32,  2  S.  W.  618 261 

Stephens  v.  Motl,  81  Tex.  115,  16  S.  W.  731.14,  51,  68,  75,  81,  208,  215 
Stephenson  v.  Stephenson,  6  Tex.  Civ.  App.  529,  25  S.  W.  649.172,202 

Stevens   v.   Martin,   18    Pa.    St.    101 67 

Stinnett   v.   House,   1   U.   C.   486 76,    160,   166,   175 

Stirman   v.   State,   21   Tex.   734 261,   281,   287,   370,   373 

Stitzle  v.  Evans,  74  Tex.  599,  12   S.  W.  326 121 

St.  Louis  &  S.  W.  By.  Co.  v.  Kay,  85  Tex.  559,  22  S.  W.  665.  ..  . 

282,371 

St.  Louis  etc.  By.  v.  Harris,  73  Tex.  375,  11  S.  W.  405 14 

Stone  v.  Sledge   (Tex.  Civ.  App.),  24  S.  W.  697,  87  Tex.  49,  47 

Am.   St.  Bep.   65,  26   S.  W.   1069 

...  .67,  70,  83,  119,  129,  130,  140,  210,  327,  329,  407,  408,  412,  429 
Stooksberrv  v.  Swann,  12  Tex.  Civ.  App.  66,  21  S.  W.  694,  22  S. 

W.   966,   34   S.   W.   369 39,   108,   144,   207,   209,   327 

Stott  V.   Harrison,   73  Ind.   20 408 

Stramler  v.  Coe,  15  Tex.  212 103,  165,  326,  417 

Stringer   v.    Swenson,   63    Tex.    7 132,    138 

Stringfellow  v.  Thompson,  1  C.  C.  A.  565 215 

Suddereth  v.  Smyth,  13  Ired.  (K  C.)  452 240 

Summer  v.  Mitchell,  29  Fla.  179,  30  Am.  St.  Bep.  106,  10  South. 

.562,   14  L.  B.   A.   815 "-40 

Summers   v.   Shearn    (Tex.   Civ.   App.),   37   S.   W.   246 86,   141 

Swamscott  Mac.  Co.  v.  Walker,  22  N.  H.  457,  55  Am.  Dee.  172,  35 

L.    E.    A.    321,   note l''-'^ 

S.  W.  Mfg.  Co.  v.  Hughes  (Tex.  Civ.  App.),  60  S.  W.  687 234 

Talbert  v.  Dull,  70  Tex.  675,  8  S.  W.  530 75,  78,  81,  131, 

177,  191,  222,  273,  302,  809,  312,  314,  315,  317,  322,  374,  381,  399 

Talbert' v.   Stewart,    39   Cal.   602 225,  226 

Talbot  V.  Dillard,  22  Tex.  Civ.   App.  361,  54  S.  W.  407 191 

Talkin  v.  Anderson   (Tex.),  17  S.  W.  361 139 

Tate   v.    Stoolzfoos,    16    Am.    Dec.    547,    548,    note 414 

Taylor  v.  Hall,  71  Tex.  218,  222,  9  S.  W.  141 262,  282 

Taylor   v.   Harrison,  47   Tex.   457,   26   Am.   Bep.   304 37 

Terrell  v.  Martin,  64  Tex.  127 --^^ 

Texas  Land  Co.  v.  Williams,  51  Tex.  51.  .  .62,  68,  95,  97,  131,  176 

201,   202,   206,   220,   221,    223,   224,   306,   309,   311,   320,   321,  415 

Texas  Loan  Agency  v.  Taylor,  88  Tex.  50,  29  S.  W.  1057 88 

Third  \at    Bank  of  Chattanooga  v.  Smith,  Tenn.  Ch.  App.  1102.  . 

238,  327 

Thomi)S()n   v.  Johnson,  84  Tex.  548,  19  S.  W.  784 

80,  120,  138,  146,  237,  239,  265,  271,  277,  391,  401,  403 


Iviii  TABLE  OF  CASES. 

[The  References  are  to  Pages.] 

Thompson  v.  Johnson,  92  Tex.  360,  51  S.  W.  23 122,  134 

Thompson  v.  Wilson,  24  Tex.  Civ.  App.  666,  60  S.  W.  355 108 

Thorn  v.  Frazcr,  60  Tex.  261 211,  291,  311 

Thouvenin  v.  Kodrigiies,  24  Tex.  478.  .261,  265,  278,  346,  358,  363,  373 

Threadgill  v.  Biekorstaff,  7  Tex.  Civ.  App.  406,  26  S.  W.  741 

79,   82,   138 

Threadgill    v.    Butler,    60    Tex.    601 60 

Thulemeyer  v.  Jones,  37  Tex.  571 238 

Tleman  v.  Cobb  (Tex.  Civ.  App.),  80  S.  W.  250 134 

Tippett  V.  Brooks,  67  S.  W.  512 118 

Tipton  V.  Jones,  57   Tenn.    (10   Heisk.)    564 236 

Tittle  V.  Vaneer  (Tex.  Civ.  App.),  27  S.  W.  736 37,  236 

Titus  V.  Johnson,  50  Tex.  240 69,  86,  96,  142,  234 

Titus  V.  Kimbro,  8  Tex.  218 4,  5,  7,  8,  18,  26,  30,  32,  93,  419 

Titus  V.  Latimer,  5  Tex.  436 348 

Torrey  v.  Forbes,  94  Ala.  135,  10  South.  320,  17  L.  E.  A.  113 221 

Towle  V.  Marrett,  14  Am.  Dec  209 262 

Townes  v.  Harris,  13  Tex,  512 226 

Tracy  v.  Jenks,  15  Pick.  (Mass.)  465 67 

Trammel  v.  Neal,  1  U.  C.  51 410 

Trenwith  v.  Smallwood,  111  N.  C.  132,  15  S.  E.  1030 237 

Trowbridge  v.  Addoms,  23  Colo.  518,  48  Pae.  535 436 

Trueheart  v.  Adclicks,  2  Tex.  221 361 

Tucker  v.  Carr,  39  Tex.  98 * 14o 

Tunstall  v.  Wormley,  54  Tex.  481 282 

Uhl  V.  Masquez,  1  U.  C.  658 25,  27 

United  States  v.  Bixby,  10  Bliss.  523 327 

United  States  v.  Griswold,  8  Fed.  556 436 

United  States  Express  Co.  v,  Haines,  48  111.  248 437 

Utzfield  V.  Bodman,  76  Tex.  361,  13  S.  W.  474 110,  161,  306 

Van  Clife  v.  Van  Vichten,  55  Hun,  467,  8  N.  Y.  Supp.  760 293 

Vasquez  v.  Tex.  Loan  Agency  (Tex.  Civ.  App.),  45  S.  W.  942.. 

183,197 

Vogelsang  v.  Null,  67  Tex.  467,  3  S.  W.  451 39 

Wadkius  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  R.  A.  779.  . 

108,  113,  145,  147,  271,  275,  306 

Wallace  v.  State,  33   Tex.  445 362 

Wallerath  v.  Knapp,  31   Tex.  359 362 

Waltee  v.  Weaver,  57  Tex.  569 8.5,  88,  117,  118,  120,  127,  140,  433 

Wannell  v.  Kem,  51  Mo.  150 408 

Wardlow  v.  Miller,  69  Tex.  397,  67  S.  W.  292 139 

Warren   v.  .Jones,   69   Tex.   465,   6   S.  W.  775 110,   121,   226,  232 

Waters  v.  Spofford,  58  Tex.  121 

35,  47,  100,  101,  189,  192,  196,  207,  331 


TABLE  OF  CASES.  lis 

[The  Beferences  are  to  Pages.] 

Waters  v.  Waters,  33  Tex.  oO 362 

Watkins   v.   Edwards,   23   Tex.   447 89 

Watkins  v.   Hall,  57   Tex.   1 51,  72,   81,   122,  173 

Watrous  v.  McGrew,  16  Tex.  511 10,  26,  160,  241 

Watson  V.  Chalk,  11  Tex.  93 27 

Watson  V.  Lessee,  1  Binn.  470,  2  Am.  Dec.  462 83 

Watson  V.  Mercer,  33  U.  S.  (8  Pet.)  88,  8  L.  ed.  876 414 

Watson  V.  Mirike,  25  Tex.  Civ.  App.  527,  6  S.  W.  541 437 

Webb  V.  Burnev,  70  Tex.  323,  7  S.  W.  841 

85,  86,  117,  118.  127,  128,  140,  143 

Webb  V.  Den,  17  How.  578,  15  L.  ed.  35 116 

Webb  V.  Hnfle,  61  Tex.  678 69,  81,  82,  207 

Webb  V.  Mallard,  27  Tex.  83 265,  278 

Webb  V.  State   (Tex.  Cr.  App.),  40  S.  W.  989 67 

Wedel  V.  Herman,  59  Cal.  507 409 

Welsh  T.  Lewis,  71  Ga.  387 237 

Wert  V.  Schneider  &  Davis,  64  Tex.  330 240,  283 

Wheeler  v.  Moody,  9  Tex.  375 28,     30 

Wheelock  v.  Cavitt.  91  Tex.  682,  66  Am.  St.  Eep.  920,  45  S.  W. 

796 8^'  1^8 

Whetstone  v.  Coffey,  48  Tex.  272 113,  147 

White  V.  Burney,  27  Tex.  51 203 

White  V.  Holliday,  20  Tex.  688 189 

Whitehead  v.  Foley,  28  Tex.  272 69,     70 

Wiggins  V.  Fleishel,  50  Tex.  57 37,  90,  189,  200,  203 

Wiley  V.  Prince,  21  Tex.  637 85,  128,  141,  142 

Williams  v.  Conger,  125  U.  S.  397,  8  Sup.  Ct.  Eep.  933,  31  L.  ed. 

778 3,   7,    10,   13,   17,   191 

Williams  v.  Conger,  49  Tex.  600 26,  92,  241 

Williams  v.  Ellingsworth,  75  Tex.  480,  12  S.  W.  746 

115,  116,  129,  145,  200,  210,  411,  412 

Williams  v.  Graves,  7  Tex.  Civ.  App.  365,  26  S.  W.  338 121 

Williams  v.  Pounds,  48  Tex.  141 85,  141 

Williams  v.  Walker,  2  Eich.  Eq.  291,  46  Am.  Dec.  53 165 

Willis  V.  Lewis,  28  Tex.  185 355 

Wilson   V.   Kimmel,   109   Mo.   260,    19   S.   W.    24 238 

Wilson  V.  Simpson,  80  Tex.  279,  16  S.  W.  40 

78,  100,  121,  134,  137,  138,  207 

Wilson  V.  Simpson,  68  Tex.  312,  4  S.  W.  839 

16.5,  222,  238,  265,  271,  277,  315,  328,  343,  353,  391 

Wilson  V.  Traer,  20  Iowa,  231 237 

Winbish  v.  Holt,  26  Tex.  676 213 

Winn  V.  Winn,  23  Tex.  Civ.  App.  618,  07  S.  W.  81 121 

Winsted  Sav.  Bank  v.  Spences,  26  Conn.  195 23  < 

Witt  v.  Harlan,  66  Tex.  660,  2  S.  W.  41 72,  136,  206,  208 

Womack  v.  Womack,  8  Tex.  397,  58  Am.  Dec.  119 118,  140 

Wood  V.  Welder,  42  Tex.  408 25,  29,  48,  91,  92,  102 


Ix  TABLE  OF  CASES. 

[The  References  are  to  Pages.] 

Woodniff  V.  MeTIarry,  56  111.  218 238 

Woolfolk  V.  Graniteville  etc.  Co.,  22  S.  C.  332 158 

Word  V.  McKinney,  25  Tex.  268 18,  29,  35,  92 

Workman's  Mutual  Aid  Assn.  v.  Monroe  (Tex.  Civ.  App.),  53  S. 

W.   1029 235 

Wren  v.  Howlan.l  (Tex.  Civ.  App.)  75  S.  W.  894 

173,    174,    181,   182,   185,  310 

Wright  V.  Hayes,  10  Tex.  136,  60  Am.  Dec.  200 38,  109,  120,  124 

Wright  V.  Leath,  24  Tex.  33 354 

York  V.  Gregg,  9  Tex.  85 23,  27,  93,  419 

Zimpleman  v.  Stamps,  21  Tex.  Civ.  App.  129,  51  S.  W.  341 229 


AUTHENTICATION 


PROOF  OF  WRITTEN  INSTRUMENTS, 


TEXAS 


THE 


AUTHENTICATION, 
ACKNOWLEDGMENT  AND  PROOF 

OP 

WRITTEN  INSTRUMENTS. 


CHAPTER  I. 

CONVEYANCES,  AUTHENTICATION  AND  EEGISTRATION 
PRIOR  TO  THE  REGISTRATION  ACT  OF  DECEMBER  20, 
1836. 

§     1.     Historical  outline. 

§     2.     How  sale  may  be  effected  under  Spanish  and  Mexican  laws. 

Verbal  sale  of  real  estate  valid. 

Form  of  contracts. 

Notice  and  priority  of  purchasers  under  Spanish  and  Mexi- 
can laws. 
§     3.     Method  of  authentication  and  record  prior  to  1836. 

(a)  By  authorized  officers. 

(b)  Spanish  language   to  be  used. 

(c)  Stamped  paper  to  be  used. 

(d)  Seals,  signets,  rubrics  and  notarial  flourishes. 

(e)  Signatures,  names,  residences,  date,  venue,  terms,  etc. 

(f )  Assisting  witnesses  necessary  to  authentication,  when. 

(g)  Alterations,  blanks,  interlineations,  forgeries,  etc. 
(h)     Presumptions— Proof— Antiquity. 

(i)      Method  for  Austin  colony. 

(j)      Custom. 
§     4.     Necessity,  materiality  and  effect  of  authentication. 
§     5.     Officers  authorized  to  authenticate. 
§     6.     Notaries  public. 

§§  7-21.     Judges  and  decrees  relating  to  same. 
§  22.     Authority  of  officers  immaterial,  when. 

1  (1) 


§§   1,  2  AUTHENTICATION   PRIOR   TO   1837.  2 

§  1.  Historical  Outline — From  the  year  1727  to  August 
24,  1821,  Texas  was  a  colony  of  Spain  and  governed  by 
the  same  laws.  From  that  time  until  November  13, 
1835,  Coahuila  and  Texas  (and  New  Leon  until  1824) 
constituted  one  of  the  states  of  the  Republic  of  Mexico, 
and  Avere  governed  by  her  laws.  At  this  time  a  pro- 
visional government  was  established  by  the  inhabitants 
of  Texas,  which  lasted  until  Texas  declared  her  inde 
pendence,  March  2,  1836.  (A  constitution  was  adopted 
March  17, 1836. )  ^  Texas  remained  a  republic  until  July 
4, 1845,  when  she  became  one  of  the  states  of  the  Union.^ 
She  seceded  in  1861,  but  again  adopted  a  constitution 
acceptable  to  the  federal  government  in  September,  1869. 
Laws  passed  during  the  time  of  her  secession  were 
valid,  however.^  During  her  history  she  adopted  eight 
different  constitutions,  besides  various  amendments  to 
same,  to  wit :  Those  of  March  17,  1836,  of  July  4,  1845 
(U.  S.),  of  August  27,  1845,  of  March  2,  1861,  of  March 
11,  1861  (Confederate),  of  October  8,  1866,  of  September 
(second  Monday),  1869,  and  of  November  24,  1875. 
Shortly  after  the  adoption  of  the  different  constitutions 
the  laws  relating  to  registration  and  the  authentication 
of  written  instruments  were  usually  revised,  modified 
and  amended,  as  will  be  seen  hereafter,  under  the  vari- 
ous titles.* 

§  2.  How  Sale  may  be  Effected  Under  Spanish  and  Mexican 
Law — ''Sale  and  purchase  may  be  effected  in  two  ways : 
One  in  writing,  and  the  other  without.  In  writing, 
v/hen  the  buyer  says  to  the  seller,  'I  wish  to  have  this 
sale  reduced  to  writing.'  A  sale  made  in  this  manner 
is  not  perfect,  although  the  parties  are  agreed  upon  the 
price,  until  the  writing  is  made  and  executed ;  for  until 
then,  either  of  them  may  retract.     But  after  the  writing 

1  1  L.  T.  61,  113;  Sayles'  Real  Estate  Laws,  c,  1. 

2  2  L.  T.  1228. 

3  Post,  §  884, 

4  See,  also,  Appendix. 


3  AUTHENTICATION  PRIOE  TO  1837.  §  2 

is  once  made  and  perfected,  in  the  presence  of  witnesses, 
neither  party  can  retract  and  sue  for  a  rescission  of  the 
sale.  Without  writing,  when  the  seller  and  buyer  have 
mutually  agreed  upon  the  price:  the  one  being  pleased 
with  the  price  and  the  other  with  the  thing,  without 
mentioning  any  writing."  "We  say  that  a  sale  thus 
made  would  be  perfect  although  no  earnest  had  been 
given  by  the  buyer  to  the  seller,  as  they  would  be  both 
bound  for  the  fulfillment  of  the  contract  they  had 
made."  ^ 

Verbal  Sale  of  Real  Estate  Valid. — Under  the  Roman, 
Spanish  and  Mexican  law,  verbal  sales  of  real  estate 
were  valid.  Only  three  things  were  necessary  to  make 
a  valid  contract:  1.  A  thing  or  subject  matter  of  the 
contract;  2.  A  price;  3.  The  consent  of  the  parties/' 

There  was  a  Spanish  decree,  however,  of  September 
30,  1791,  to  the  effect  that  sales  of  real  estate  should  be 
by  a  public  writing;  the  decree  providing  that  whereas 
frauds  have  been  committed  on  the  revenue  by  making 
secret  parol  sales  of  real  estate,  it  is  ordered  that  the 
alcabala  be  collected  on  such  sales,  because  the  con- 
tracts become  perfect  by  the  mere  consent  of  the  par- 
ties.'' 

Form  of  Contracts. — "The  validity  of  contracts  does 
not  depend  upon  any  external  formality,  unless  in  those 
cases  in  which  the  law  expressly  provides  otherwise."  ** 

Notice  and  Priority  of  Purchasers  Under  Spanish  and 
Mexican  Laws. — Prior  to  1871,  under  the  Mexican  law, 

5  Partida  3,  title  5,  published  and  sanctioned  in  Spain  in  1348,  and 
remained  in  force  in  Spain  and  Mexico  prior  to  the  code  of  March  1, 
1871.  Hall's  Mexican  Laws,  sec.  1494,  law  6.  As  to  necessity  of 
assisting  witnesses,  see  Clay  v.  Holbert,  14  Tex.  193;  post,  §§  3,  350- 
354.     As  to  sales  by  married  women,  see  post,  §  239. 

6  Hall's  Mexican   Law,   §   1555. 

7  Hall's  Mexican  Law,   §   1555. 

8  Hall's  Mexican  Law,  art.  1439,  §  2468;  Williams  v.  Conger, 
125  U.  S.  789,  8  Sup.  Ct,  E«p.  933,  31  L.  ed.  778. 


§  3  AUTHENTICATION  PRIOR  TO   1837.  4 

where  the  same  property  is  sold  to  different  parties  at 
different  times,  the  first  person  having  paid  the  price, 
who  obtains  possession  of  it,  will  hold  it.^ 

But  if  the  purchaser  knows  that  the  property  did  not 
belong  to  the  seller,  he  may  lose  not  only  the  property 
purchased  but  also  his  improvements  placed  thereon.^** 
And  Mr.  Sayles,  in  his  valuable  work,  gives  as  Spanish 
legal  maxims:  "No  man  can  give  to  another  a  greater 
right  to  a  thing  than  he  has  himself."  And  "a  thing 
Avliich  belongs  to  us  cannot  be  transferred  to  another 
without  our  consent  or  act."^*  It  is  also  intimated  in 
Mills  V.  Waller,  Dall.  419,  that  a  public  or  authentic 
instrument  would  be  constructive  notice. 

§  3.     Method  of  Authentication  and  Registration Under 

the  Spanish  and  Mexican  laws  in  force  in  Texas  prior 
to  December  20,  1836,  written  conveyances,  to  be  public 
or  authentic,  or  proof  of  what  they  contain,  and  notice 
to  the  world,  must  be  written  in  a  register  by  a  notary 
or  other  authorized  officer,  and  signed  by  the  parties, 
assisting  witnesses,  and  by  the  officer  under  his  official 
seal,  with  certain  other  requirements  as  will  be  seen 
below.  This  original  deed,  etc.,  so  written  by  the  officer 
m  his  register,  remained  in  his  custody  as  a  public 
archive  and  was  called  the  matrix  or  protocol.  A  copy 
of  the  protocol,  called  the  testimonio  or  second  original, 
was  made  by  the  officer  and  delivered  to  the  purchaser  as 
evidence  of  his  title.  The  protocol  being  a  public  in- 
strument, no  other  acknowledgment  or  registration  was 
necessary.*^ 

9  Hall's  Mexican  Law,  1527;  Sayles'  Early  Laws,  art.  126,  §  12. 

10  Laws  of  California,  Oregon  and  Texas,  1,  p.  199. 

11  Sayles'  Early  Laws,  art.  129,  §§  12,  13. 

12  Smith  V.  Townsend,  Dall.  570;  Titus  v.  Kimbro,  8  Tex.  218; 
Hall's  Mexican  Law,  1555;  Land  Laws  of  California,  Oregon  and 
Texas  (White's  New  Recopilacion),  vol.  1,  pp.  296-299;  Sayles'  Early 
Laws,  arts.  25,  71,  127,  128;  Hanrick  v.  Cavanaugh,  60  Tex.  19;  Han- 
rick  V.  Dodd,  62  Tex.  87;  McKissick  v.  Colquhoun,  18  Tex.  151;  Mills 
V.  Waller,  Dall.  419.     And  see  post,  §§   25,  33. 


5  AUTHENTICATION  PRIOR  TO  1837.  §  3 

As  a  general  rule,  a  protocol,  to  be  public  or  authen- 
tic, must  be  written  and  signed  by  an  authorized  officer, 
in  the  Spanish  language,  on  stamped  paper,  with  his 
official  seal,  signet,  rubric  or  notarial  flourish;  must 
state  the  consideration  and  subject  matter  of  the  con- 
tract, be  signed  by  the  parties  and  at  least  two  assisting 
witnesses,  properly  dated,  with  the  name  of  the  place 
where  executed,  and  without  blanks,  alterations,  eras- 
ures, interlineations  or  corrections  in  the  substantial 
parts,  unless  the  same  are  duly  noted  by  the  officer. ^^ 
A  testimonio,  to  be  public  or  authentic,  must  be  a  copy 
of  the  public  or  authentic  protocol  made  by  the  officer 
keeping  same.  One  of  the  axioms  of  the  Spanish  law 
is  that  a  public  instrument  does  not  produce  faith,  if 
devoid  of  any  solemnity. ^^ 

(o)  By  Authorized  Officers . — The  authentication 
must  be  by  authorized  officers  who  must  sign  the  same.^^ 
It  is  not  necessary  in  all  cases  that  commissioner  sign 
the  protocol.*^ 

While  the  title  extended  must  be  duly  authenticated 
by  an  authorized  officer,  to  be  full  proof,  where  a  person 
acts  as  such,  his  authority  is  sometimes  presumed.*'' 
Where  a  primary  judge  acted  in  authenticating  a  sale 
in  1835,  that  raises  at  least  a  presumption  of  his  author 
ity.**  There  is  a  Spanish  authority  to  the  effect  that 
if  the  objection  is  made  that  the  instrument  offered  was 
not  made  by  the  hand  of  a  notary,  ''that  throws  the 
burden  on  the  party  offering  the  instrument  to  prove 

13  Hanrick  v.  Cavanaugh,  60  Tex.  19,  and  authorities  below  cited. 

14  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  297. 

15  Andrews  v.  Marshall,  26  Tex.  216;  McCarty  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100;  Laws  of  California,  Oregon  and  Texas, 
vol.  1,  p.  297;  Sayles'  Early  Laws,  art.  25;  and  post,  §  22.  As  to 
oflSicers  who  were  authorized,  see  post,  §§  5,  21. 

16  Titus  V.  Kimbro,  8  Tex.  214;  2  White's  Recopilacion,  57. 

17  Martin  v.  Parker,  26  Tex.  258;  Sheldon  v.  Milmo,  90  Tex.  18- 
22,  36  S.  W.  413;  Downing  v.  Diaz,  80  Tex.  436,  16  S.  W.  49;  Jones 
V.  Meisback,  26  Tex.  237. 

18  McKissick  v.  Colquhoun,  18  Tex.  151. 


§  3  AUTHENTICATION  PRIOR  TO  1837.  6 

he  was  a  notary,  except  in  five  cases  expressed  by  Pareja, 
tit.  1,  resol.  3,  sec.  2,  4  N.,  50  al."  ^^  But  another  au- 
thority says  that  the  protocol  or  testimonio  is  full  proof 
unless  the  instrumental  witnesses  contradict  it.^" 

Where  a  notary  dies,  his  minutes  and  register  should 
be  delivered  to  the  notary  appointed  to  succeed  him, 
who  may  execute  public  acts  from  the  minutes  or  reg- 
ister of  his  predecessor.^^ 

[b)  Spanish  Language  to  he  Used. — Under  the  in- 
structions to  the  commissioner  in  Texas,  of  September 
4,  1827,  all  public  instruments,  titles,  or  documents 
whatever,  drawn  by  the  commissioner,  shall  be  written 
in  the  Spanish  language.^^ 

(c)  Stamped  Paper. — From  the  Spanish  authorities 
at  hand,  while  it  is  not  clear,  it  seems  that  under  the 
Spanish  law^s  in  force  prior  to  Decree  No.  11  of  Coahuila 
and  Texas,  of  October,  2, 1824,  the  use  of  stamped  paper 
was  essential  to  the  authenticity  of  an  instrument.  The 
Spanish  decree  of  September  30,  1791,  provided  that 
sales  of  real  estate  should  be  by  a  public  writing;  the 
decree  providing  that  whereas  frauds  have  been  com- 
mitted on  the  revenue  by  making  secret  parol  sales 
of  real  estate,  it  is  ordered  that  the  alcabala  (taxes)  be 
collected  on  such  sales,  because  the  contracts  become 
perfect  by  the  mere  consent  of  the  parties. ^^  In  an 
early  case  before  our  supreme  court,  in  discussing  the 
law  of  September  4,  1827,^^*  requiring  the  commissioner 
"to  form  a  book  in  calf,  of  paper  bearing  the  impres- 
sion of  the  third  seal,  whereon  he  shall  write  the  titles 
of  the  lands  which  he  distributes  to  the  colonists,  speci- 

19  Laws  of  California,  Oregon  and  Texas,  vol.   1,  p.  297. 

20  4  Sala,  127,  130,  136;  McPhaul  v.  Lapsley,  20  Wall.  286,  22  L. 
ed.  344.  . 

21  Sayles'   Early  Laws,  art.   128. 

22  1  L.  T.    183.     And  see  Sartor  v.  Bolinger,  59  Tex.  411. 

23  Hall's  Mexican  Laws,  §   1555.     See  post,  §§   1079-1086. 
23a  1    L.   T.    56. 


7  AUTHENTICATION  PEIOR  TO  1837.  §  3 

tying  their  names,  boundaries,  and  other  requisites  and 
legal  circumstances;  and  he  shall  take  from  the  said 
book  attested  copies  ( testimonios)  of  each  possession 
upon  paper  of  the  second  seal,  which  he  shall  deliver  to 
the  person  interested  to  serve  him  for  title."  Judge 
Hemphill  says :  "This  instruction  does  not  differ  in  sub- 
stance from  the  regulations  by  which,  for  centuries,  in 
Spain  notaries  had  been  directed  and  governed  in  the 
execution  of  public  instruments."^* 

The  decrees  of  October  6,  1823,  and  October  2,  1824,25 
required  titles  to  be  on  stamped  paper.  Under  these 
decrees  the  want  of  the  stamps  did  not  render  the  title 
void,  but  only  its  authentication  void.  Unless  on 
stamped  paper  it  would  not  be  authentic,  and  proof  of 
its  issuance  by  the  commissioner  would  be  required  be- 
fore it  would  be  given  effect.^^  Even  stamps  of  the 
wrong  date  would  render  the  authentication  invalid. 2'' 

Ihese  colonization  laws  required  conveyances  be- 
tween private  parties  as  well  as  those  issued  by  the 
commissioner,  to  be  on  stamped  paper.^^  As  seen 
above,  the  protocol  requires  one  denomination  of 
stamps  and  the  testimonio  another.  This  may  some- 
times aid  in  distinguishing  the  instruments    offered.^® 

(d)  Seals,  Signets^  Rubrics  and  Notarial  Flourishes. 
There  are  two  kinds  of  written  instruments  under  the 

24  Titus  V.  Kimbro,  8  Tex.  218. 

25  Post,    §§    1079-1081. 

26  Jones  V.  Montes,  15  Tex.  352;  Sheldon  v.  Milmo,  90  Tex.  21,  36 
S.  W.  413;  Titus  v.  Kimbro,  8  Tex.  218;  Chambers  v.  Fisk,  22  Tex. 
536;   Clay  v.  Holhert,  14  Tex.  189;   Gonzales  v.  Eoos,  120  U.  S.  605, 

7  Sup.  Ct.  Rep.  705,  30  L.  ed.  801;  Carothers  v.  Covington  (Tex.  Civ. 
App.),  27  S.  W.  1042;  Andrews  v.  Marshall,  26  Tex.  216. 

27  Jones  V.  Montes,  15  Tex,  352. 

28  Carothers  v.  Covington  (Tex.  Civ.  App.),  27  S.  W.  1042;  An- 
drews V.  Marshall,  26  Tex.  216;    Williams  v.  Conger,  125  U.  S.  397, 

8  Sup.  Ct.  Rep.  933,  31  L.  ed.  778;  Titus  v.  Kimbro,  8  Tex.  219;  and 
see  post,   §§   1079-1036. 

29  See  Hutchins  v.  Bacon,  46  Tex.  415, 


§  3  AUTHENTICATION  PRIOR  TO  1837.  8 

Spauish  laws,  which  produce  faith  and  full  proof:  one 
"public,"  made  by  the  escribano  or  notary  public,  with 
the  soloninities  prescribed  ;  another,  "authentic,"  which 
is  that  sealed  by  the  kino-,  bishops,  prelates,  and  great 
men  of  the  kingdom.^**  And  also  those  sealed  by  the 
city  council,  or  abbot  or  master  of  an  order  of  knight- 
hood, or  count,  of  a  council  or  any  person  having  an 
authentic  seal.^*  From  the  Spanish  authorities  it  will 
be  seen  that  the  seals  of  the  king  or  other  great  men  of 
the  kingdom  were  essential  to  make  the  instrument  au- 
thentic ;  and  that  the  notarial  signet,  rubric  or  notarial 
flourish  was  essential  to  make  an  instrument  public, 
but  the  instrument  would  not  be  void  without  it.^^ 
And  the  requirements  as  to  the  seal  would  be  the  same 
whether  it  was  the  protocol  or  testimonio  introduced.^^ 
There  is  an  authority  to  the  contrary,  however,  holding 
that  want  of  seal  does  not  make  them  null.^* 

The  court  says,  in  McKissick  v.  Colquhoun,  18  Tex. 
151,  that  "the  signature  of  a  judge,  alcalde,  etc.,  acting 
in  place  of  a  notary,  assisted  by  two  witnesses,  has  all 
the  force  and  effect  of  the  signature  and  seal  or  rubric 
of  a  notary."  But  the  question  really  decided  w^as  that 
the  judge  was  authorized  to  act  in  place  of  a  notary, 
and  not  that  he  could  dispense  with  the  use  of  a  seal. 
Under  the  Spanish  law,  paper  was  stamped  by  means 
of  a  seal.^^ 

30  Laws  of  California,  Oregon  and  Texas  (White's  New  Recopila- 
cion),  vol.  1,  p.  296,  and  vol.  2,  p.  57;  Sayles'  Early  Laws,  art.  25. 

31  Sayles'   Early   Laws,   art.   128. 

32  Laws  of  California,  Oregon  and  Texas,  vol.  1,  pp.  297-299;  Mar- 
tin V.  Parker,  26  Tex.  261;  McKissick  v.  Colquhoun,  18  Tex.  151; 
1  Rose's  Notes,  p.  534. 

33  Laws  of  California,  Oregon  and  Texas,  vol.  1,  pp.  297-299;  Mar- 
tin V.  Parker,  26  Tex.  261;  McKissick  v.  Colquhoun,  j  18  Tex.  151; 
1  Rose's  Notes,  p.  534. 

34  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  299,  and  note 
41. 

35  See  Titus  v.  Kimbro,  8  Tex.  218. 


9  AUTHENTICATION  PRIOR  TO  1837.  §  3 

(e)  Signatures^  Names,  Residences,  Date,  Venue, 
Terms,  Subject  Matter,  etc. — "Instruments  or  deeds  in 
which  are  wanting  the  names  of  the  contracting  par- 
ties, the  escribano,  witnesses,  signatures,  signets,  term 
of  payment,  day,  month  and  year,  and  the  matter  upon 
which  it  hath  been  covenanted  or  delivered,  are  not 
valid  or  entitled  to  faith."^**  And  the  place  or  town 
where  the  instrument  is  executed  should  be  expressed 
as  well  as  the  names,  surnames,  dates,  and  residences 
of  the  parties  and  witnesses.  The  names  of  persons 
and  towns  should  not  be  written  with  their  initials 
alone,  nor  should  any  alterations  or  ciphers  that  in 
substantial  things  may  produce  obscurity,  equivocation, 
or  contention ;  quantities  and  dates  should  be  expressed 
in  letters  and  not  in  numbers  and  figures,  under  pen- 
alty of  nullity  of  the  instrument,  etc.,  and  the  terms  and 
amount  must  be  stated.^''  Without  any  of  the  above 
formalities  the  instrument  would  not  be  public  or  au- 
thentic. 

if)  Assisting  Witnesses  JVecessary  to  Authentication 
When. — Under  the  Spanish  and  Mexican  laws  in  force 
in  Texas  prior  to  December  20,  1836,  acts  of  sale,  etc., 
sealed  with  the  king's  seal,  or  that  of  an  archbishop, 
bishop,  city  council  (ayuntamiento),  abbot,  master  of 
an  order  of  knighthood,  count,  council  or  any  person 
having  an  authentic  seal,  will  be  authentic,  or  make 
full  proof  of  what  they  contain ;  and  that  the  act  of  a 
notary  public  ( escribano)  in  which  is  written  the  names 
of  at  least  two  witnesses  is  a  public  instrument,  and 
makes  full  proof  of  what  it  contains;  and  that  an  act 
by  some  other  person,  signed  by  two  witnesses  in  their 
own  handwriting,  will  be  valid  during  the  lives  of  the 
witnesses.^*^  The  residences  of  the  witnesses  must  also 
be  stated.^^ 

36  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  298. 

37  Hanrick  v.  Cavanaugh,   60  Tex.   19,   21. 

38  Sayles'   Early  Laws,   arts.   36,   128. 

39  Hanrick  v.  Cavanaugh,  60  Tex.  19. 


§  3  AUTHENTICATION  PEIOE  TO  1837.  10 

Decree  No.  275,  of  April  18,  1834,  provided  that 
"judges  shall  perform  judicial  acts  with  assisting  wit- 
nesses, even  should  there  be  a  notary  public  in  the  dis- 
trict of  their  jurisdiction,  provided  that  said  notary 
be  prevented  by  any  occupation  he  may  have  in  any  of 
the  courts  of  justice,  performing  the  business  of  his 
oflSce  therein  at  the  time,  or  for  any  other  reason 
wherein  his  default  may  impede  the  prompt  adminis- 
tration of  justice."'*^ 

Instructions  to  the  commissioners  of  September  4, 
1827,  required  all  public  instruments  of  possession,  and 
attested  copies  signed  by  the  commissioner  to  be  at- 
tested by  two  assisting  witnesses.*^  Under  this  in- 
struction titles  extended  without  assisting  witnesses 
were  not  authentic.*^ 

It  was  the  protocol  that  should  be  signed  by  the  wit- 
nesses, their  names  on  the  testimonio  being  usually 
written  by  the  notary  who  makes  the  copy.^^ 

Where  witnesses  were  required  as  seen  by  the  above 
law,  the  w^ant  of  same  does  not  render  the  instrument 
void,  but  its  authentication  only  is  rendered  void.  Such 
an  instrument  would  not  be  full  proof  of  what  it  con- 
tains, even  where  witnessed  by  one  witness,  but  would 
have  to  be  proven  when  offered  in  evidence.'*^  The  above 
cases  cited  refer  to  grants,  or  titles  extended  by  com- 
missioners under  the  colonization  laws,  but  the  same 
rule  applies  to  conveyances  between  private  persons.*' 

40  1  L.  T.  363;  MeKissick  v.  Colquhoun,  18  Tex.  151. 

41  1  L.   T.   58. 

42  Grimes  v.  Bastrop,  26  Tex.  312;  Clay  v.  Holbert,  14  Tex.  201. 

43  Sayles'   Early  Laws,  arts.   127,   128. 

44  Clay  V.  Holbert,  14  Tex.  200;  Allen  v.  Hoxey,  37  Tex.  334; 
State  V.  DeLeon,  64  Tex.  559;  Euis  v.  Chambers,  15  Tex.  587;  Wat- 
rous  V.  McGre-w,  16  Tex.  512;  Grimes  v.  Bastrop,  26  Tex.  312. 

45  Andrews  v.  Marshall^  26'  Tex.  216;  Carotbers  v.  Covington  (Tex. 
Civ.  App.),  27  S.  W.  1042;  Williams  v.  Conger,  125  U.  S.  397,  8  Sup, 
Ct.  Rep.  933,  31  L.  ed.  778.  See  Martin  v.  Parker,  26  Tex.  261,  and 
MeKissick  v.  Colquhoun,  18   Tex.  151. 


11  AUTHENTICATION  PRIOR  TO  1837.  §  3 

The  office  of  assisting  witnesses  is  to  authenticate  the 
signature  of  the  notary  or  other  officer,  while  that  of 
instrumental  witnesses  is  to  witness  and  prove  the  sig- 
natures of  the  parties.  Instrumental  witnesses  were  not 
essential  to  the  authenticity  of  the  instrument.^**  In 
the  case  of  Cowan  v.  Williams,  49  Tex.  395,  the  court 
does  not  note  the  distinction  between  assisting  wit- 
nesses and  instrumental  witnesses,  which  may  account 
for  its  intimating  that  instrumental  witnesses  are  es- 
sential to  the  authenticity  of  an  instrument. 

(g)  Alterations,  Blanks,  Interlineations,  Forgeries, 
etc. — In  order  that  an  instrument  be  considered  public 
or  authentic,  and  lawful,  the  following  circumstances 
are  required:  That  the  document  be  clearly  written, 
without  blanks,  erasures,  obliterations,  interlineations 
or  corrections,  especially  in  the  substantial  parts;  for 
example,  in  the  names  and  surnames  of  the  parties,  of 
the  notary  public  and  witnesses,  in  the  terms  and 
amount,  and  the  thing  in  relation  to  which  the  writing 
is  done,  in  the  compact  and  conditions,  and  in  the 
day,  month  and  year  of  the  date,  and  in  the  place  where 
the  instrument  was  executed ;  and  that,  in  case  that  any 
correction,  obliteration  or  addition  be  made  at  the  time 
of  reading  the  instrument  to  the  parties,  the  same  be 
authenticated  at  the  foot  of  it  by  the  notary,  previous 
to  the  signing  in  order  to  prevent  suspicion  of  fraud. ^'' 

The  above  rule  refers  to  the  testimonio  or  instrument 
delivered  to  the  purchaser.  The  rule  is  different  where 
the  alterations,  etc.,  are  found  in  the  protocol  or  regis- 
ter kept  by  the  notary.  In  this  case,  the  alterations, 
interlineations,  etc.,  only  are  void,  while  the  protocol 
will  still  be  valid.^* 

46  Hartin  v.  Parker,  26  Tex.  261;  McKissick  v.  Colquhoun,  18  Tex. 
153;  Clay  v.  Holbert,  li  Tex.  203. 

47  Hanrick  v.  Cavanaugh,  60  Tex.  19. 

48  Hanrick  v.  Cavanaugh,  60  Tex.  20;  Hanrick  v.  Dodd,  62  Tex. 
87. 


§  3  AUTHENTICATION  PRIOR  TO  1837.  12 

An  instrument  may  be  valid  under  the  Spanish  law, 
though  not  autlientie  or  full  proof,  and  notice.  Where 
it  has  been  ''scratched,  corrected,  underscored,  written 
over,  or  torn,  or  cut  in  any  of  the  substantial  parts, 
....  it  shall  be  unworthy  of  credit  unless  the  party 
introduciufij  it  shall  prove  that  it  was  done  by  force  or 
accident."^^  But  if  the  true  meaning-  of  the  deed  can 
be  obtained,  although  it  is  obliterated  in  other  parts 
which  are  not  substantial,  it  will  produce  entire  proof. 
It  is  also  seen  from  the  institutes  of  the  Civil  Laws  of 
Spain,  book  3,  title  7,  that  a  copy  from  a  protocol 
spoiled  or  faulty,  or  wanting  solemnities,  is  null.  But 
although  an  instrument  is  null  in  all  its  parts,  its  con- 
tents may  be  proved  by  witnesses  or  other  legal  evi- 
dence.^** 

In  the  case  of  Hanrick  v.  Cavanaugh,  supra,  as  the 
corrections,  etc.,  in  the  protocol  of  the  grant  w^ere  not 
proved  to  have  been  made  by  "force  or  accident,"  tested 
by  the  Spanish  law,  the  corrections,  interlineations, 
etc.,  at  least,  would  be  null  (or  not  public  or  authentic). 
But,  as  the  contents  of  a  deed,  under  the  Spanish  law, 
could  be  proven  by  witnesses  or  other  legal  evidence, 
where  this  proof  was  made,  the  authentication  of  the 
instrument  would  be  immaterial,  unless  the  question 
of  notice  or  registration  is  involved.  In  the  case  of 
Hanrick  v.  Cavanaugh,  supra,  the  protocol,  tested  by 
the  Spanish  law,  with  its  erasures,  etc.,  would  not  be 
evidence  of  the  conveyance  or  grant  to  plaintiff,  and 
the  question  of  notice  or  registration  not  being  in- 
volved, the  question  of  the  grant  was  properly  submit- 
ted as  a  question  of  fact  to  the  jury.  But  suppose  the 
question  had  been,  was  a  certified  copy  of  said  protocol, 
from  the  land  office,  which  had  been  recorded  in  the 
county  in  which  the  land  lies,  constructive  notice?  As 
the  protocol  in  its  mutilated  condition  would  not  be 

49  Hanrick   v.    Cavanaugh,    60    Tex.    19. 

50  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  293.  For  rule 
under  common  law,  see  Houston  v.  Jordan,  82  Tex.  253. 


13  AUTHENTICATION  PKIOR  TO  1837.  §  3 

authentic,  should  not  the  court  instruct  the  jury  that 
the  record  was  not  notice,  that  the  protocol,  though 
an  archive,^^  was  not  such  an  authentic  protocol  as 
would  entitle  a  copy  thereof  to  be  recorded?  ^^ 

( //)  Presumption  —  Proof  — •  Antiqwity. — ^While  au- 
thenticity is  not  presumed,  certain  essentials  of  it 
sometimes  are.  For  instance,  "copies  made  one  hun- 
dred years  before,  the  quality  of  the  notary  not  being 
evident,  nor  in  what  year  made,  produce  faith  on  ac- 
count of  the  difficulty  of  proving  said  quality."  "But 
whenever  the  copy  of  the  instrument  is  observed  to  be 
taken  by  the  notary  without  any  solemnity  nor  signa- 
ture, in  which  case  the  authentication  does  not  produce 
faith,  the  presumption  that  it  proceeds  from  this  an- 
tiquity is  destroyed  by  exhibiting  the  copy  in  which  the 
requisites  of  a  public  deed  do  not  appear  to  have  oc- 
curred. "^^  The  protocol  is  admissible  as  an  ancient 
instrument,  without  authentication,  though  not  the  tes- 
timonio.^^ 

Again,  it  is  held  by  our  courts  that  where  a  person 
acts  in  a  certain  capacity  in  authenticating  an  instru- 
ment, that  it  raises  a  presumption  of  his  authority.^^ 
It  is  also  held  that  where  an  instrument  is  presented  to 
the  county  clerk  for  record,  it  is  his  duty  to  see  that  it 
is  attested  with  a  proper  seal;  and  where  he  recorded 
the  instrument,  and  the  record  shows  scroll  for  seal, 
"we  must  presume  that  it  was  attested  with  the  proper 
seal,  and  that  the  officer  so  executing  was  authorized 

51  Allen  V.  Hoxey,  37  Tex.  335. 

52  Andrews  v.  Marshall,  2&  Tex.  216;  MeCarty  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100;  Hatehett  v.  Connor,  30  Tex.  109;  2  Rose's 
Notes,   p.   45. 

53  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  299. 

54  Williams  v.  Conger,  125  U.  S.  397,  8  Sup.  Ct.  Rep.  933,  31  L.  ed. 
778. 

55  McKissick  v.  Colquhoun,  18  Tex.  151;  Martin  v.  Parker,  26  Tex. 
258;  Sholdon  v.  Mil  mo,  00  Tex.  18,  36  S.  W.  413;  Jones  v.  Muisbach, 
26  Tex.  237;  Hooper  v.  Hall,  35  Tex.  87. 


§  3  AUTHENTICATION  PEIOE  TO  1837.  14 

to  do  so.'"^®  And  that  his  authority  was  shown  by  the 
seal.^'  And  where  the  certificate  of  the  officer  refers 
to  his  seal,  as,  "witness  my  official  seal,"  it  is  pre- 
sumed that  a  proper  seal  was  attached.^*^ 

And  Avhere  the  authentication  of  an  instrument  un- 
der the  laws  in  force  prior  to  December  20,  1836,  is 
not  shown  by  the  instrument,  it  is  well  settled  that  the 
validity  of  the  conveyance  may  be  proven  by  other  evi- 
dence.^* 

And  it  seems  also  clear  that  it  would  be  proper  to 
prove  by  other  evidence,  the  contrary  not  appearing, 
that  the  authentication  was  valid,  and  that  the  instru- 
ment had  been  duly  deposited  and  recorded.  Under 
the  Spanish  law,  the  official  character  of  the  notary,  the 
execution  of  the  instrument,  etc.,  may  be  shown  by 
parol.^**  Both  protocols  and  testimonios  might  be 
proven  and  recorded. ***  And  it  is  well  settled  that  ac- 
knowledgments and  certificates  thereof,  as  well  as  the 
deeds,  may  be  proven  by  secondary  evidence,  the  best 
evidence — i,  e.,  the  certificate  of  the  officer — not  being 
obtainable. *^^    Also  destroyed  records  may  be  proven  "" 


63 


56  Caudle  v.  Williams  (Tex.  Civ.  App.),  51  S.  W.  562. 

57  Stephens  v.  Motl,  81  Tex.  120,  16  S.  W.  731. 

58  Post,  §§   38,  489,  490. 

59  Andrews  v.  Marshall,  26  Tex.  216;  Clay  v.  Holbert,  14  Tex. 
189;  Jones  v.  Montes,  15  Tex.  352;  Chambers  v.  Fisk,  22  Tex.  536; 
Sheldon  v.  Milmo,  90  Tex.  21,  36  S.  W.  413;  Gonzales  v.  Koos,  120 
U.  S.  605,  7  Sup.  Ct.  Eep.  705,  30  L.  ed.  801;  Carothers  v.  Covington 
(Tex.  Civ.  App.),  27  S.  W.  1042;  Williams  v.  Conger,  125  U.  S.  422, 
8  Sup.  Ct.  Eep.  933,  31  L.  ed.  778;  Allen  v.  Hoxey,  37  Tex.  334. 

60  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  297;  Sayles' 
Early  Laws,  art.  128. 

61  Gainer  v.  Cotton,  49  Tex.  114;  and  post,  §  33. 

62  Simpson  v.  Edens,  14  Tex.  Civ.  App.  235,  38  S.  W.  476;  Grain 
V.  Huntington,  31  Tex.  614;  Daniels  v.  Creekmore,  7  Tex.  Civ.  App. 
573,  27  S.  W.  149. 

63  St.  Louis  etc.  Ey.  v.  Harris,  73  Tex.  375,  11  S.  W.  405;  Shepard 
V.  Cummings,  44  Tex.  502;  post,  §  190.     Also  see  §  38. 


15  AUTHENTICATIOX  PKIOE  TO  1837.  §  4 

(i)  Method  for  Austin  Colony. — Under  the  decree  of 
February  18,  1823,  of  the  emperor,  Stephen  F.  Austin 
was  charged  with  the  administration  of  justice  for  the 
Austin  colony,***  and  the  governor  of  the  state  of  Coa- 
huila  and  Texas  on  May  31,  1827,  required  him  to  keep 
a  registration  of  the  documents  and  titles  of  the  Aus- 
tin colony,  which  documents  shall  be  signed  by  the 
commissioner,  empresario  and  alcalde  of  the  town, 
with  assisting  witnesses. ^^ 

On  September  4,  1827,  the  legislature  required  the 
commissioner  to  form  a  manuscript  book  of  the  paper 
of  the  third  stamp  in  which  shall  be  written  the  titles 
of  the  lands  distributed  to  the  colonists,  specifying  the 
names,  boundaries  and  other  requisites  and  legal  cir- 
cumstances, and  a  certified  copy  of  each  title  shall  be 
taken  from  said  book  on  paper  of  the  second  stamp, 
which  shall  be  delivered  to  the  interested  person  on  his 
title.  They  shall  be  written  in  Spanish  and  attested 
by  two  witnesses.®^ 

(;*)  Custom. — Under  the  Spanish  law,  a  legitimate 
custom  has  the  force  of  law,  derogates  the  former  law 
that  is  contrary  to  it,  and  interprets  the  doubtful  law ; 
from  whence  it  is  said  that  there  is  a  custom  beyond 
the  law,  contrary  to  the  law,  and  according  to  the 
law.«^ 

§  4.  Necessity,  Materiality  and  Effect. — Authenticity 
was  not  essential  to  the  validity  of  an  instrument  un- 
der the  Spanish  law,  its  office  being  to  dispense  with 
the  necessity  of  other  proof  of  the  contents  of  the  in- 
strument, and  make  it  a  public  record.^* 

64  1  L.  T.  32. 

65  1  L.  T.  38.     See  Clay  v.  Holbert,  U  Tex.  199. 

66  1  L.  T.  56,  58. 

67  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  360. 

68  Ante.   §    3. 


§  4  AUTHENTICATION  PRIOR  TO  1837.  16 

There  was  no  distinction  between  conveyances  of  the 
husband  and  wife  as  to  authenticity  or  necessity  of 
same.  The  husband  could  convey  his  property  and 
their  community  property  without  the  wife  joining 
therein,  and  while  she  might  convey  hers  without  his 
joining,  his  consent  was  required,  and  though  it  does 
not  appear  on  the  instrument,  would  be  presumed  after 
long  delay. ^^ 

After  the  act  of  December  20,  1836,  required  the  de- 
posit of  protocols  with  county  clerks  and  in  the  general 
land  office,'^*^  it  seems  that  it  was  necessary  that  the  pro- 
tocol be  authenticated,  to  entitle  a  copy  thereof  made 
by  the  keeper  to  registration  or  admission  in  evidence, 
under  the  laws  of  Texas,  without  other  proof. '^^  But 
see  Lambert  v.  Weir,  27  Tex.  364,  where,  in  deciding 
that  a  testimonio  was  inadmissible  as  a  recorded  in- 
strument, in  speaking  of  instruments  in  public  archives 
(protocols),  Judge  Moore  says:  "These  instruments 
could  not  be  withdrawn  from  their  place  of  deposit  to 
be  proved  and  recorded  in  the  proper  county.  But  the 
fact  that  they  remained  among  the  public  archives, 
which  was  manifest  by  the  certificate  of  the  officer  in 
charge  of  them,  was  sufficient  evidence  of  their  authen- 
ticity to  admit  to  record  the  copy."  It  is  also  seen  that 
a  protocol  may  be  a  proper  archive,  though  not  properly 
authenticated.'^^ 

It  seems  that  the  authentication  of  the  protocol 
would  be  immaterial  where  it  was  proven  by  other 
means  (as  in  the  case  of  Hanrick  v.  Cavanaugh,  60  Tex. 
21),  unless  the  question  of  notice  or    registration    was 

69  Post,  §  239;  Scott  v.  Maynard,  Dall.  548;  Harvey  v.  Hill,  7 
Tex.  597;  Halbert  v.  Bennett,  26  S.  Vf.  912;  Sayles'  Early  Laws, 
arts.  118,  125,  126. 

70  Post,   §§    25-32. 

71  Andrews  v.  Marshall,  26  Tex.  216;  McCarty  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100;  Hatchett  v.  Connor,  30  Tex.  109;  Hooper 
V.  Hall,  35  Tex.  85;  2  Rose's  Notes,  p.  45, 

72  Allen  v.  Hoxey,  37  Tex.  335. 


17  AUTHENTICATION  PRIOR  TO  1837.  §  5 

involved.  For  while  the  protocol  might  be  an  archive 
without  being  authentic,  it  seems  that  authentication 
is  necessary  to  entitle  a  copy  of  same  to  registration.'^^ 
The  authentication  of  the  testimonio  would  likewise 
be  immaterial,  as  in  any  event  it  would  have  to  be 
proven  or  acknowledged  under  our  laws  before  admit- 
ted to  record  or  in  evidence.''^  The  original  protocol 
would  be  admissible  as  an  ancient  instrument,  though 
not  authenticated.'^^ 

As  seen  above,  the  effect  of  authentication  was :  1. 
To  make  the  instrument  full  proof  (under  the  Spanish 
laws)  of  its  contents ;  2.  To  make  it  a  public  record  and 
possibly  constructive  notice;''^  and  3.  Where  the  pro- 
tocol had  become  a  public  archive  under  the  laws  of 
Texas,'^''  to  entitle  a  copy  thereof  to  registration,  or  ad- 
mission in  evidence. '^^ 

Prior  to  the  act  of  December  20,  1836,  the  protocol 
and  testimonio  were  admissible  in  evidence  without 
proof  of  execution,  provided  they  were  authenticated.''® 

§  5.  Officers  Authorized  to  Authenticate. — It  seems  that 
under  the  Spanish  and  Mexican  laws  the  officers  au- 
thorized to  execute  and  authenticate  conveyances  be- 
tween private  persons  were  royal  clerks  (escribano),^^ 
notaries  public  ^-"^  (but  not  ecclesiastical  notaries),*^ 
judges. ^^     Also,  the  king,  prince,    archbishop,    bishop, 

73  Supra. 

74  Post,  §§  33,  34. 

75  Williams  v.  Conger,  125  U.  S.  397,  8  Sup.  Ct.  Rep.  933,  31  L.  ed. 
778. 

76  Ante,  §   2. 

77  Post,   §§   25-32. 

78  Ante,  §  3, 

79  Ante,  §  3;  and  1  Dumat's  Civil  Law,  p.  164.     For  effect  of  ac- 
knowledgments subsequent  to  December  20,  1836,  see  post,  §§  63,  64. 

80  Sayles'  Early  Laws,  art.  25. 

81  Sayles'  Early  Laws,  arts.  127,  128. 

82  Laws  of   California,  Oregon  and  Texas,  vol.   1,  p.  207. 

83  Sayles'  Early  Laws,  art.  71;  1  L.  T.  363. 

2 


§§  6-9  AUTHENTICATION    PRIOR    TO    1837.  18 

(hike,  coiiiit,  marquis,  or  any  other  person  in  authority, 
"secretary  of  state,"  cabildo  or  ayuntamiento;^  and  em- 
presarios.***"^  In  absence  of  alcalde,  first  regidor,**®  al- 
caldes,**'' commissioners.*® 

§  6.  Notaries. — Act  of  February  25,  1824,  provided 
that  notaries  shall  not  extend  their  functions  beyond 
the  limit  of  their  municipality.®^ 

§  7.  Judges. — Under  the  Spanish  and  Mexican  laws 
in  force  in  Texas  prior  to  December  20,  1836,  and  after 
the  act  of  April,  1834,  the  signature  of  a  judge  or  al- 
calde acting  in  place  of  a  notary,  authenticated  by  two 
assisting  witnesses,  had  the  force  and  effect  of  a  no- 
tarial act.?^**  The  first  act  in  Texas  authorizing 
"judges"  to  perform  notarial  acts  (with  assisting  wit- 
nesses) was  that  of  April,  1834.^*  There  is  some  ob- 
scurity as  to  what  officials  would  be  included  under  the 
term  "judges,"  but  the  following  summary  is  believed 
to  include  all  acts  under  the  different  governments  of 
Texas,  since  1822. 

§  8.  Supreme  Court  of  Justice. — Act  of  January  21, 
1824,  of  Mexican  federation  confides  the  administration 
of  justice  to  a  supreme  court  of  justice,  and  to  such  tri- 
bunals as  may  be  established  in  the  separate  states.^^ 

§  9.  Judicial  Power  to  Remain  in  Same  Authorities. — 
Decree  No.  1  of  Coahuila  and  Texas,  August  15,  1824, 

84  Sayles'  Early  Laws,  art.  128;  Paschal  v.  Perez,  7  Tex.  361. 

85  Houston  V.  Perry,  5  Tex.  464,  arts.  1-4;  1  L.  T.  38. 

86  Edwards  v.  James,  7  Tex.  373. 

87  Herndon  v.  Casiasso,  7  Tex.  324;  Secrest  v.  Jones,  21  Tex.  123; 
Word  V.  McKinney,  25  Tex.  259. 

88  Titus  V.  Kimbro,  8  Tex.  211;  De  Leon  v.  White,  9  Tex.  600; 
ante,  §  3   (d). 

89  1  L.  T.  346.     See  "Notaries,"  chapter  20. 

90  McKissick  v.  Colquhoun,  18  Tex.  151. 

91  1   L.   T.   363. 

92  1  L.  T.  64. 


19  AUTHENTICATION   PRIOR   TO   1837.  §§  10-12 

provides  that  the  judicial  power  shall  for  the  present 
be  vested  in  the  authorities  b}^  which  it  is  now  exercised 
in  the  state.^^ 

§  10.  Supreme,  Circuit  and  District  Courts. — Act  of  Oc- 
tober 4,  1824,  the  judicial  power  of  the  Union  shall 
consist  of  the  supreme  court,  which  shall  be  composed 
of  eleven  ministers.®*  The  circuit  court,  of  a  judge 
and  two  associates,  and  the  district  court,  of  two  dis- 
trict judges.'*^  And  that  the  judicial  power  in  each 
state  shall  be  exercised  by  the  tribunals  established 
bv  their  constitutions. 


§  11.     Judges  of  Responsibility. — Decree  No.  18,  of  July 
4,  1825,  provided  for  judges  of  responsibility.^ 


96 


§  12.  Alcaldes  and  Primary  Judges. — It  seems  that  the 
former  laws  of  Mexico  regulating  the  establishment  of 
the  judiciary  of  the  state  remained  in  force  until  decree 
No.  262,  of  Coahuila  and  Texas,  was  enacted  March  4, 
1834.  This  made  alcaldes  the  executive  officers  of  the 
peace  and  president  of  the  ayuntamiento  (city  coun- 
cil). They  then  performed  the  functions  exercised  by 
both  our  justices  of  the  peace  and  mayors.'^''  And  in 
any  town  which  the  laws  required  to  have  an  ayuntami- 
ento, where  the  population  does  not  exceed  five  thou- 
sand, there  shall  be  one  primary  judge ;  in  those  of  oveir 
five  thousand  to  ten  thousand,  two  shall  be  appointed ; 
in  all  others,  three  shall  be  appointed.  The  attributes 
of  said  judges  shall  be  the  same  that  the  law  regulating 
the  administration  of  justice,  and  others  concordant, 
intrusted  to  alcaldes,  both  for  verbal  demands  and  busi- 

93  1  L.  T.  114. 

94  1  L.  T.  88. 

95  1  L.  T.  90. 

96  1  L.  T.  135. 

97  1   L.  T.  347;  Hallam's  Middle  Ages,  p.  11,  c.  4,  p.  213. 


§§  13-16  AUTHENTICATION   PEIOE   TO    1837.  20 

iiess  in  writing.     And  alcaldes  shall  pass  to  them  the 
records,  etc.^^ 

§  13.  Judges  to  Act  with  Assisting  Witnesses. — On  April 
18,  1834,  decree  No.  275  authorized  judges  to  perform 
judicial  acts  with  assisting  witnesses  where  a  notary 
public  is  for  any  cause  unable  to  perform  same.®^ 

§  14.  The  Supreme  Judicial  Court  of  Texas. — Decree  No. 
277,  April  17,  1834,  provided  that  Texas  shall  be  formed 
into  one  judicial  circuit,  which  shall  be  denominated 
"The  Superior  Judicial  Court  of  Texas,"  and  shall  be 
composed  of  one  superior  judge. ^®** 

§  15.  Primary  Judges  and  Commissarios  Assisted  by  Wit- 
nesses.— And  for  the  trial  of  civil  cases  there  shall  be 
in  every  municipality  a  tribunal  for  each  primary 
judge,  composed  of  one  judge.^*^^  The  official  acts  of 
judges  and  commissarios  shall  be  attested  by  assisting 
mtnesses.***^  On  October  5,  1835,  a  deed  executed  be- 
fore a  second  judge  of  the  first  instance  with  two  in- 
strumental and  two  assisting  witnesses  was  valid. *^^ 

§  16.  First  and  Second  Judges  to  be  Notaries  Public. — 
November  13,  1835,  article  5,  of  the  provisional  govern- 
ment provided  for  a  judiciary  consisting  of  two  judges, 
a  first  and  second;  the  latter  to  act  only  in  the  absence 
or  inability  of  the  first.  And  article  6  of  said  act 
makes  them  a  court  of  record  for  conveyances,  and  the 
notary  public.  And  all  other  civil  proceedings  shall 
be  suspended  until  the  governor  and  general  council 
shall  otherwise  direct.  ^^■* 

98  1  L.  T.  347. 

99  1  Lr.  T.  363. 

100  1  L.  T.  364. 

101  1  L.  T.  364. 

102  1  L.  T.  366. 

103  McKissick  v.   Colquhoim,   18   Tex.   151. 

104  1  L.  T.  540,  910. 


21  AUTHENTICATION    PEIOR    TO    1837.  §§  17-20 

§  17.  First  Judge  to  Execute  Notarial  Acts. — The  act 
passed  January  16,  and  approved  January  22,  1836, 
section  4,  provided  that  the  first  judge  of  each  and  every 
municipality  shall  hold  probate  courts  on  the  first  Mon- 
day in  every  month  at  the  courthouse  or  clerk's  ofiice; 
and  for  executing  notarial  acts,  etc.*^^ 

§  18.  Alcaldes,  Commissarios  and  Primary  Judges. — Sec- 
tion 6  provided  "that  all  alcaldes  and  commissarios  in 
the  several  municipalities  of  Texas  shall  have  jurisdic- 
tion in  civil  cases  where  the  matter  in  controversy  does 
not  exceed  fifty  dollars;  nevertheless  he  shall  have  the 
right  of  appeal,  if  either  party  is  dissatisfied,  to  the 
primary  judge's  court,"  etc.  And  the  alcaldes  and  com- 
missarios shall  have  the  same  jurisdiction  in  arresting 
and  committing  offenders  against  the  law  as  justices  of 
the  peace  under  the  common  law  of  England. 


106 


§  19.  Judges  of  Courts. — Sections  16  and  18  provided 
that  there  shall  be  a  clerk  appointed  for  each  municipal- 
ity by  the  first  and  second  judge  and  alcalde.  And 
that  judges  of  the  courts  shall  have  two  dollars  for  each 
time  they  sign  their  names  as  notary  public.***" 

§  20.  First  Judge  and  Primary  Judge. — "First  judge" 
and  "primary  judge"  and  "judge  of  the  first  instance" 
are  used  synonymously.****  The  signature  of  judge,  al- 
calde, etc.,  acting  in  place  of  notary,  authenticated  by 
two  assisting  witnesses,  has  the  force  and  effect  of  the 

105  1  L.  T.  1040. 

106  1  L.  T.  1041. 

107  1   L.  T.   1043,  1045. 

108  Butler  v.  Dunagan,  19  Tex.  560,  565;  and  see  H.  I>.,  art.  280, 
requiring  judges  of  the  first  and  second  instance  of  all  counties  to 
deliver  records,  etc.,  and  as  primary  judges  (first  judges)  were  the 
notaries  public  and  custodians  of  these  records  at  the  time  of  the 
passage  of  said  act,  it  seems  obvious  that  the  terms  are  used  inter- 
changeably. Prov.  Gov.,  art.  VI;  1  L.  T.  540,  and  see  Act  Feb.  9, 
1860;  4  L.  T.  1437. 


§§  21,22  AUTHENTICATION    PKIOE    TO    1837.  22 

signatiiro  and  seal  of  a  notary. **^^  On  November  14, 
1830,  tlie  aiithoritv  of  a  prinuiry  judne  to  authenticate 
instruments  cannot  be  questioned.**^ 

§  21.  Constitution  of  1836.— The  constitution  of 
Mai'cli  17,  183(>,  artick^  4,  provided  for  the  appointment 
or  election  of  supreme  and  district  and  county  judges 
and  justices  of  the  peace.***  And  the  schedule  provided 
that  all  laws  now  in  force  in  Texas,  and  not  inconsis- 
tent with  this  constitution,  shall  remain  in  full  force 
until  declared  void,  repealed,  altered  or  expired  by  their 
own  limitation.  And  that  all  judges,  commissioners 
and  other  civil  officers  shall  remain  in  office  and  in  the 
discharge  of  their  powers  and  duties  of  their  respective 
offices  until  there  shall  be  others  appointed  or  elected 
under  the  constitution.**^ 

COURTS  ORGANIZED. 

The  supreme  court  was  established  by  act  of  Decem- 
ber 15,  1836.**^ 

The  justice  court  was  established  by  act  of  Decem- 
ber 20,  1836.*** 

The  inferior  or  county  courts  were  established  by  act 
of  December  20,  1836.**^ 

The  district  court  was  established  by  act  of  December 
22,  1836.**^ 

§  22.  Authority  of  Officers  Immaterial,  When. — It  seems 
that  it  is  now  immaterial,  in  so  far  as  the  testimonio 
was  concerned,  whether  or  not  a  judge  or  other  officer 

109  McKissick  v.   Colquhoun,   18   Tex.   151. 

110  Beatty  v.  Whitaker,  23  Tex.  528, 

111  1  L.   T.   1073,  1074. 

112  1  L.  T.  1077,  1078. 

113  1  L.  T.  1139. 

114  1  L.  T.  1201. 

115  1  L.  T.  1208. 

lie  1  L.  T.  1258.  ■  ,.        ,    ,    ..,4     •. 


23  AUTHENTICATIOISr    PRIOR    TO    1837.  §  22 

authenticating  a  deed  or  executing  its  testimonio  prior 
to  December  20,  1836,  was  authorized  to  do  so  by  the 
Spanish  and  Mexican  laws;  for  the  reason  that  after 
the  act  of  December  20,  1836,  the  testimonio  was  re- 
quired to  be  proven,  before  recorded  or  admitted  in  evi- 
dence, the  same  as  though  there  had  been  no  authenti- 
cation.**'' But  the  authority  of  the  officer  might  be 
material  in  case  of  protocols,  where  they  were  depos- 
ited with  the  county  clerk  as  archives.  In  that  case, 
to  be  effective  without  other  proof,  they  should  be  au- 
thenticated by  authorized  officers,  otherwise  proof  of 
execution  would  be  required.*** 

117  Post,  §§   33,  75-77. 

118  Ante,  §  3;  post,  §  25;  Herndon  v.  Casiano,  7  Tex.  333;  York  v. 
Gregg,  9  Tex.  85;  Andrews  v.  Marshall,  26  Tex.  216, 


§23  EFFECT  OF  EEGTSTRATION  ACT  OF  1836.  24 


CHAPTER  II. 

THE  EFFECT  OF  THE  REGISTRATION  ACT  OF  DECEMBER  20, 
1836,  AND  SUBSEQUENT  ACTS  ON  TITLES  AND  DEEDS 
EXECUTED  PRIOR  THERETO. 


S    -o. 


Effect  of  said  act  and  necessity  of  registration. 
24.     Judges  to  deposit  records  with  county  clerk. 

§  25.  Protocols  and  copies  thereof. 

§  25a.  Does  this  act  apply  to  protocols  of  other  officers  also? 

§  26.  Admissible  in  evidence. 

§  2.1.  Proceedings  of  ayuntamiento  should  not  be  delivered 

to  county  clerk,  nor  protocols  to  the  land  commis- 
sioner. 

§  28.  -Protocol  might  be  proved  and  recorded, 

§  29.  Necessity  of  recording  protocols. 

§  30.  Certified  copies  by  county  clerks  admissible. 

§  31.  Certified  copies  by  general  land  office  admissible. 

§  32.     Titles   must   be   recorded. 

§  33.  Testimonies. 

§  34.  Idem. 

§  35.     Public    and    authentic    instruments. 

§  36.     Private  instruments. 

§  37.     Copies  of  instruments  in  archives  to  be  recorded. 

§  38.  Certificate  of  legal  custodian  sufficient  proof. 

§  39.     Copies  admissible  in  evidence  when. 

§  40.  Idem. 

§  41.     Archives. 

§  42.     County  clerks  to  be  recorders — Acknowledgments  and  proof. 

§  43.     Two    subscribing   witnesses   required,   when. 

§  44.     Above  provisions  obscure. 

§  45.     Acknowledgment  by  officer  sufficient. 

§  46.     Testimonio  recorded  on  proof  of  handwriting. 

§  47.     Where  record  is  made,  it  is  presumed  proof  was  made. 

§  48.     Proof  must  be  indorsed  on  instrument,  when. 

§  49.     Chief  justices  ex-officio  notaries  public. 

§  50.     No    seal   necessary   where    acknowledgment   taken   by    county 
clerk,  when. 

§  23.     Effect  of  Said  Act  and  Necessity  of  Eegistration. — 
Prior  to  the  act  of  December  20,  1836,  there  were  usu 
ally  two  evidences  of  conveyances,  to  wit:  Protocols,  o»' 


25  EFFECT  OF  EEGISTRATION  ACT  OF  1836.       §§  24, 25 

the  public  records  of  the  conveyance,  and  copies  thereof 
given  the  purchaser,  called  the  testimonio.  The  said 
registration  act  of  1836  made  different  requirements  for 
their  disposition;  section  33  of  said  act^  applying  to 
protocols,  and  section  37  of  said  act"  applying  to  all 
titles.  But  to  be  constructive  notice,  all  titles  or  copies 
thereof  must  be  recorded  in  the  office  of  the  county  clerk 
of  the  county  wherein  the  land  or  a  part  thereof  is  lo- 
cated, whether  the  instrument  be  an  archive  in  his  office 
or  not.  If  they  are  not  registered  they  will  meet  with 
the  consequences  prescribed  by  law,  and  have  no  effect 
as  to  the  rights  and  interests  of  third  parties.^ 

§  24.  Judges  to  Deposit  Records  with  County  Clerk. — Sec- 
tion 33  of  act  of  December  20,  1836,^  made  it  the  duty 
of  judges  of  the  first  instance  of  each  and  every  county 
to  deposit  in  the  office  of  the  clerk  of  the  county  court 
of  his  county  every  record,  paper,  document  or  thing 
filed  in  the  office  not  required  to  be  delivered  to  the 
district  clerk  or  justice  of  the  peace. 

§  25.  Protocols  and  Copies  Thereof. — The  above  section 
included  and  applied  to  protocols  in  the  archives  of 
judges  and  notaries,  and  made  them  public  archives  of 
the  county  clerk ;  certified  copies  of  duly  authenticated 
protocols^  made  by  him  were  admissible  in  evidence, 
and  admissible  to  record  in  the  county  where  the  land 
lies.^    Titles  in  office  of  land  commissioner  were  also 

1  Post,  §  24. 

2  Post,  §  32. 

3  Hawley  v.  Bullock,  29  Tex.  222;  Uhl  v.  Masqiiez,  1  U.  C.  658; 
Beaumont  Pasture  Co.  v.  Preston  &  Smith,  65  Tex.  456;  Henderson 
V.  Pilgrim,  22  Tex.  476;  also  Harvey  v.  Hill,  7  Tex.  597. 

4  1  L.  T.  1215. 

5  See  ante,  §  4. 

6  Hutchins  v.  Bacon,  46  Tex.  415;  McCarty  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100;  Gainer  v.  Cotton,  49  Tex.  114;  Beau- 
mont Pasture  Co.  v.  Preston,  65  Tex.  453,  456;  Wood  v.  Welder,  42 
Tex.  408;  Broxson  v.  McDougal,  63  Tex.  197. 


§"§  25a-27       EFFECT  OF  REGISTRATION   ACT  OF  1836.  26 

called  protocols.'  A  transfer  of  land  by  act  of  sale  of 
tliis  character  before  a  notary  beyond  the  limits  of  Texas 
has  long-  been  recognized  by  her  courts  as  valid  and  bind- 
ing, and  a  duly  certitied  copy  of  the  notary's  record  as 
admissible  to  prove  such  sale,  even  where  the  deed  was 
executed  after  the  passage  of  the  act  of  December  20, 
1836.** 

§  25a.  Does  This  Act  Apply  to  Protocols  of  Other  Officers 
Also? — It  is  held  that  protocols  executed  by  other  offi- 
cers tlian  judges  of  the  first  instance  might  be  deposited 
with  the  county  clerk  and  become  archives ,  though  the 
act  does  not  so  provide.^ 

§  26.  Admissible  in  Evidence. — Protocols  were  admis- 
sible in  evidence  also  prior  to  the  registration  laws  of 
1836,  without  proof  of  execution.^^  It  is  not  fatal  to 
a  protocol  that  the  officer  failed  to  sign  it  if  it  be  shown 
that  it  was  his  custom  to  write  them  in  a  book  and  sign 
at  the  end  of  the  book,  and  that  he  so  signed  the  book.^* 
Where  certificate  of  county  clerk  shows  that  deed  was 
an  archive  in  his  office  it  is  not  necessary  to  prove  that 
it  had  been  an  archive  in  the  office  of  an  alcalde  or  judge 
prior  to  February,  1837.*^ 

§  27.  Proceedings  of  Ayuntamiento  Should  not  be  Deliv- 
ered to  County  Clerk,  nor  Protocols  to  the  Land  Commissioner. 
But  the  documents  containing  the  proceedings  of  ayun- 

7  See  post,  §  31. 

8  Williams  v.  Conger,  49  Tex.  600,  125  U.  S.  397,  8  Sup.  Ct.  Rep. 
933,  31  L.  ed.  778;  Watrous  v.  McGrew,  16  Tex.  512.  But  see  Frost 
V.  Wolf,  77  Tex.  459,  19  Am.  St.  Rep.  76,  14  S.  W.  440,  and  post,  §§ 
33,  200;   ante,   §   4. 

9  See  Cowan  v.  Williams,  49  Tex.  395,  396;  Hutchins  v.  Bacon,  46 
Tex.  415.  As  to  materiality  of  officers '  authority,  see  ante,  §  22. 
As  to  authentication,  see  ante,  §  4. 

10  McKissick  v.  Colquhoun,  18  Tex.  152;  ante,  §  4. 

11  Titus  V.  Kimbro,  8  Tex.  210;  Andrews  v.  Marshall,  26  Tex.  216. 

12  Hooper  v.  Hall,  35  Tex.  86. 


27  EFFECT  OF  EEGISTRATION  ACT  OF  1836.         §§  28-30 

tamiento  (city  council)  should  have  been  delivered  to 
the  commissioner  of  the  general  land  office.  A  county 
clerk  could  have  no  legal  custody  of  them,  and  certified 
copies  of  them  made  by  him  would  not  be  held  admissi- 
ble, although  the  original  be  deposited  in  his  office/^ 
Neither  is  the  commissioner  of  the  general  land  office 
authorized  to  give  copies  of  protocols  and  testimonios 
of  sales  between  private  parties,  as  he  is  not  the  legal 
custodian  of  them.-^'* 

§  28.  Protocol  Might  be  Proven  and  Recorded. — The  pro- 
tocol or  first  original  became  an  archive  in  charge  of  the 
judge  before  whom  the  sale  was  consummated,  and  by 
the  act  of  December  20,  1836,  was  required  to  be  depos- 
ited with  the  county  clerk,  where  it  should  remain,  but 
if  it  passed  into  the  hands  of  the  grantee,  he  might  no 
doubt  have  proven  it  up  for  record,  and  had  it  recorded, 
and  it  would  have  been  admissible  in  evidence.*^ 

§  29.  Necessity  of  Recording  Protocols. — The  presence 
of  the  protocol  as  an  archive,  deposited  with  the  county 
clerk,  in  compliance  with  section  33  of  the  said  act  of 
December  20,  1836,  even  though  it  be  in  the  county 
where  the  land  lies,  is  not  effective  as  registry.  The 
registration  laws  take  no  notice  of  the  archive  as  a  part 
of  the  records  provided  for  by  them.  It  is  not  construc- 
tive notice.*^ 

§  30.  Certified  Copies  by  County  Clerks  Admissible. — The 
act  of  1846^''  also  made  certified  copies  of  protocols  in 

13  York   V.   Gregg,   9   Tex.   92. 

14  Hatchett  v.  Conner,  30  Tex.   110.     See  post,  §  31. 

15  Gainer  v.  Cotton,  49  Tex.  114;  McKissick  v.  Colquhoun,  18  Tex. 
148. 

16  Uhl  V.  Musquez,  1  U.  C.  658;  Watson  v.  Chalk,  11  Tex.  93;  Haw- 
ley  V.  Bullock,  29  Tex.  222;  Lyttleton  v.  Giddings,  47  Tex.  114. 

17  H,  D.,  art.  746. 


§§  31-33         EFFECT  OF  REGISTRATION  ACT  OF  1836.  28 

the  custody  of  the  county  clerks  admissible  in   evi- 
dence.*^ 

§  31.  Certified  Copies  by  General  Land  Office  Admissible — . 
It  seems  that  titles  issued  by  the  commissioner  under 
the  colonization  laws  were  also  called  protocols,  and  the 
second  originals  were  called  testimonies,  and  copies 
made  by  the  general  land  commissioner,  after  tiie  pro- 
tocols had  become  archives  in  his  office,  would  be  evi- 
dence under  article  744,  Hartley's  Digest.*^ 

§  32.  Titles  Must  be  Recorded. — Section  37^**  of  said 
act  required  owners  or  claimants  of  land  by  deeds,  liens 
or  any  other  color  of  title  to  have  the  same  proven  in 
open  court, and  recorded  in  the  office  of  the  clerk  of  the 
county  court  in  which  said  land  is  situate  within  twelve 
months  from  the  first  day  of  April,  1837 ;  but  if  a  tract 
of  land  lies  on  the  county  line,  the  title  may  be  recorded 
in  the  county  in  which  part  of  said  land  lies. 

Time  Extended. — The  act  of  May  10,  1838,  provided 
that  so  much  of  the  above  section  as  requires  recording 
before  April  1,  1838,  is  repealed,^* 

§  33.  Testimonios — It  was  the  testimonio  or  second 
original,  and  not  the  protocol  or  first  original,  which 
section  37  of  the  act  of  1836  contemplated  should  be 
proved  and  recorded  in  the  county  wherein  the  land 
lies.^^  This  act  authorized  the  registration  of  testi- 
monios, but  it  was  held  that  some  proof,  to  admit  them 

18  Hubert  v.  Bartlett,  9  Tex.  103;  Broxon  v.  McDougal,  63  Tex.  197; 
Hooper  v.  Hall,  35  Tex.  86. 

19  Wheeler  v.  Moody,  9  Tex.  375;  Nicholson  v.  Horton,  23  Tex.  51; 
Houston  V.  Blythe,  60  Tex.  513;  Clayton  v.  Rehm,  67  Tex.  53,  2  S.  W. 
45.  But  see  ante,  §  4,  and  post,  §  41.  See  "Certificate  as  Evi- 
dence," post,  §  194. 

20  1  L.  T.  1215;  H.  D.  2754. 

21  1  L.  T.  1478. 

22  Gainer  v.  Cotton,  49  Tex.  114. 


29  EFFECT  OF  REGISTKATION  ACT  OF  1836.  §  M 

to  record,  was  indispensable.'^  It  is  well  established 
that  a  testimonio  was  not  admissible  in  evidence  with- 
out proof  of  execution,^^  and  that  want  of  proof  will 
not  be  cured  by  lapse  of  time."^  This  rule  was  estab- 
lished by  the  adoption  of  the  common-law  rules  of  evi- 
dence in  1836.^®  But  it  is  held  that  simply  the  acknowl- 
edgment of  his  signature  to  the  certificate  on  the  testi- 
monio, by  the  officer  who  executed  the  same,  before  the 
county  clerk,  is  sufficient  to  admit  the  testimonio  to 
record,  has  been  too  long  and  well  established  by  this 
court  for  question.-''  But  it  was  also  held  that  a  testi- 
monio made  in  the  state  of  Louisiana,  duly  proven,  was 
not  admissible  to  record  nor  in  evidence  owing  to  its 
being  a  copy.-®  Its  execution  was  after  the  act  of  De- 
cember 20,  1836,  and  consequently  section  37  of  said  act 
might  not  have  contemplated  it.  The  reverse  of  this 
rule  seems  to  have  been  held  in  the  earlier  cases. ^^  The 
testimonio  should  not  be  confused  with  copies  of  the 
protocol  made  by  the  keeper,  after  it  had  become  an 
archive  under  the  laws  of  Texas.^** 

§  34.  Idem. — Where  a  testimonio  is  executed  by  an 
officer  prior  to  the  act  of  December  20,  1836,  said  officer 
may  appear  before  a  chief  justice  of  the  county  court, 
as  required  by  said  act,  and  acknowledge  the  same,  and 

2.3  Beaumont  Pasture  Co.  v.  Preston  &  Smith,  65  Tex.  454;  Wood  v. 
Welder,  42  Tex.  408;  Word  v.  McKinney,  25  Tex.  269;  Hatchett  v. 
Conner,  30  Tex.  110.     But  see  Smitli  v.  Townsend,  Dall.  570. 

24  Wood  V.  Welder,  42  Tex.  408. 

25  Hatchett  v.  Conner,  30  Tex.  108;  Hutchins  v.  Bacon,  46  Tex. 
415. 

26  Paschal  v.  Perez,  7  Tex.  361. 

27  Gainer  v.  Cotton,  49  Tex.  114;  Edwards  v.  James,  7  Tex.  372; 
Beaty  v.  Whitaker,  23  Tex.  526;  McCarty  v.  Johnson,  20  Tex.  Civ. 
App.  184,  49  S.  W.  1100. 

28  Frost  V.  Wolf,  77  Tex.  459,  19  Am.  St.  Eep.  761,  14  S.  W.  440. 

29  See,  also,  ante,  §  25,  and  post,  §  34.  As  to  materiality  of  au- 
thentication, see  ante,  §  4. 

30  See  ante,  §§  25-31. 


§  35  EFFECT  OF  REGISTRATION  ACT  OF  1836.  30 

entitle  it  to  registration.^^  A  testimonio  is  an  original, 
and  if  proven  up  under  the  common  law,  is  admissible 
in  evidence  and  of  record.^'*  Under  the  Spanish  law,  a 
testimonio  executed  without  a  protocol  was  a  nullity.^* 
But  no  testimonio  dated  in  1835  or  1836  has,  since  the 
validating  act  of  February  9,  1860,  been  held  not  prop- 
erly recorded,  if  registered  in  the  proper  county  and 
authenticated  by  the  proper  judge.**  The  commis- 
sioner of  the  general  land  office  is  not  authorized  to  give 
copies  of  testimonios  and  protocols,  as  he  is  not  the  le- 
gal custodian  of  them.^^  But  the  testimonio  may  be 
made  from  protocol  by  subsequent  officer  having  legal 
custody  of  protocol.^*^  Where  an  instrument  is  found 
in  the  possession  of  a  party,  the  presumption  is  that  it 
is  not  the  original  or  protocol.^'' 

§  35.  Public  and  Authentic  Instruments. — Prior  to  the 
registration  law  of  1836  there  was  a  distinction  made 
between  authentic  instruments  and  public  instru- 
ments.^^ A  public  instrument  was  one  written  by  a 
notary  or  escribano,  with  assisting  witnesses  and  other 
formalities,  while  an  authentic  instrument  was  one 
sealed  by  the  king,  bishops,  prelates,  and  great  men  of 
the  kingdom.^^  While  the  effect  is  the  same,  the  formal- 
ities as  to  their  authentication  is  slightly    different.^'* 

31  Beaty  v.  Whitaker,  23   Tex.  527. 

32  Herndon  v.  Casiano,  7  Tex.  332;  Wheeler  v.  Moody,  9  Tex.  372; 
Titus  V.  Kimbro,  8  Tex.  213. 

33  Titus  V.  Kimbro,  8  Tex.  219. 

34  Beaumont  Pasture  Co.  v.  Preston  &  Smith,  65  Tex.  456. 

35  Hatchett  v.  Conner,  30  Tex.  110. 

36  Smith  V.  Townsend,  Dall.  572.  See  McPhaul  v.  Lapsley,  20  "Wall. 
285,  22  L.  ed.  344;  and  see  "Certificates  as  Evidence,"  post,  §  194, 
and  ' '  Curing  Defective  Acknowledgments, ' '  chapter  28. 

37  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  298. 

38  Paschal  v.  Perez,  7  Tex.  361. 

39  Laws  of  California,  Oregon  and  Texas,  vol.  1,  p.  296. 

40  See  ante,  §  3  (d);  Paschal  v.  Perez,  7  Tex.  361;  Andrews  v. 
Marshall,  26  Tex.  216. 


31  EFFECT  OF  EEGISTEATION  ACT  OF  1836.         §§  36-39 

§  36.  Private  Instruments. — Private  instruments  be- 
tween the  parties  themselves,  without  the  intervention 
of  a  notary  public,  seem  to  have  been  principally  in  the 
contemplation  of  the  legislature.  Provision  was  made 
for  their  record.  They  were  binding  between  the  par- 
ties, and,  on  registry  or  notice,  they  were  conclusive  as 
against  third  parties.*^ 

§  37.  Copies  of  Instruments  in  Archives  to  be  Recorded. — 
Act  of  January  19,  1839,^^  provided  that  copies  of  all 
deeds,  etc.,  when  the  originals  remain  in  the  public 
archives,  and  were  executed  in  conformity  with  the  laws 
existing  at  their  dates,  duly  certified  by  the  proper  offi- 
cers, shall  be  admitted  to  record  in  the  county  where 
such  land  lies."*^ 

§  38.  Certificate  of  Legal  Custodian  Sufficient  Proof. — The 
certificate  of  the  officer  that  they  remained  in  the  public 
archives  was  sufficient  proof  of  their  authenticity  to  ad- 
mit to  record  the  copy.** 

§  39.  Copies  Admissible  in  Evidence,  When. — Act  of  May 
13,  1846,*^  provided  that  copies  of  all  conveyances  and 
other  instruments  of  writing  between  private  individ- 
uals, which  were  filed  in  the  office  of  any  alcalde  or 
judge  in  Texas  previous  to  the  first  Monday  in  Febru- 
ary, 1837,  shall  be  admitted  as  evidence  in  like  manner 
as  the  originals  might  be,  and  shall  have  the  same  force 
and  effect  as  such  originals ;  provided  such  copies  shall 
be  certified  to  under  the  hand  and  seal  of  the  officer 
with  whom  such  conveyance  and  instrument  of  writing 
are  now  deposited.     Under  this  act  it  was  not  necessary 

41  Harvey  v.  Hill,  7  Tex.  .597. 

42  P.  D.  4984;  H.  D.  2761. 

43  And  see  ante,  §  29. 

44  Lambert  v.  Weir,  27  Tex.  364.  See  ante,  §§  3  (h),  5.  As  to 
necessity  of  recording,  see  ante,  §  29. 

45  2  L.  T.  1694. 


§§  40,41        EFFECT  OF  REGISTRATION  ACT  OF  1836.  3Si 

to  prove  the  original  was  filed  in  the  clerk's  office  prior 
to  February,  1837.*« 

§  40.  Idem. — A  deed  executed  before  a  notary  in 
Matamoras  in  1828,  and  filed  in  the  archives  of  Austin's 
colony  in  1829,  does  not  come  within  the  provisions  of 
this  act.^''  A  certified  copy  of  a  sale  before  the  alcalde 
of  Austin,  certified  by  the  county  clerk  of  Austin  county, 
was  admissible  under  this  section."*^  It  seems  to  repu- 
diate testimonios  delivered  to  the  parties."*^  The  au- 
thentic act  must  have  been  executed  with  due  form  to 
constitute  it  authentic.^** 

§  41.  Archives. — Protocols  in  the  custody  of  the 
judges  were,  by  the  act  of  December  20,  1836,  required 
to  be  deposited  with  the  county  clerks,  and  became  pub- 
lic archives  under  the  laws  of  Texas.^^  By  the  same 
act,  protocols  of  title  issued  by  the  land  commissioner, 
under  the  colonization  laws,  became  archives  in  the  gen- 
eral land  office. ^^ 

A  grant  or  deed  may  be  an  archive,  though  not  prop- 
erly authenticated.^^  But  it  seems  that  in  that  case  it 
would  not  be  admissible  in  evidence  or  to  record  with- 
out other  proof. ^"^  Certificates  as  to  archives  or  copies 
thereof  by  translators  in  the  land  office,  are  sufficient 
where  the  commissioner  certifies  as  to  the  status  of  the 
translator.^^ 

46  Hooper  v.  Hall,  35  Tex.  87. 

47  Lee  V.  Wharton,  11  Tex.  74. 

4  8  Hubert  v.  Bartlett,  9  Tex.  102;  1  Rose's  Notes,  p.  330. 

49  Titus  V.  Kimbro,  8  Tex.  221. 

50  Andrews  v.  Marshall,  26  Tex.  216;  McCarty  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100. 

51  Ante,  §§  24-30. 

52  Ante,  §  31. 

53  Allen  V.  Hoxey,  37  Tex.  335. 

54  Ante,  §  4. 

55  Hubert  v.  Bartlett,  9  Tex.  97;  Hatch  v.  Dunn,  11  Tex.  715.  Also 
see  ante,  §§  25-31,  and  Rev.  Stats.   1895,  tit.  7. 


33  EFFECT  OF  EEGISTRATION  ACT  OF  1836.         §§  42-44 

§  42.  County  Clerks  to  be  Recorders — Acknowledgments 
and  Proof.— Section  35  of  act  of  December  20,  1836,^*^* 
provides  that  county  clerks  shall  be  the  recorders  for 
their  respective  counties,  and  it  shall  be  their  duty  to 
record  all  deeds,  conveyances,  mortgages,  and  other 
liens,  and  all  other  instruments  of  writing  required  by 
law  to  be  recorded  in  their  respective  offices  which  are 
presented  to  them,  provided  one  of  the  witnesses  of  the 
number  required  by  law  shall  swear  to  the  signature  of 
the  signer,  or  he  himself  shall  acknowledge  the  same, 
which  shall  be  certified  by  the  recorder,  and  form  part 
of  the  record;  and  all  deeds,  conveyances,  mortgages 
and  other  liens  shall  be  recorded  in  the  county  where 
the  property  is  situated. 

§  43.  Two  Subscribing  "Witnesses  Required,  When. — And 
section  38  of  said  act  provides  that  all  titles,  liens,  or 
other  color  of  title,  before  they  can  be  admitted  upon 
record,  must  be  proven  by  at  least  two  subscribing  wit- 
nesses, if  living  in  the  county,  and  if  not  so  living  in  the 
county,  then  the  handwriting  shall  be  proven  either  be- 
fore some  county  judge  or  before  the  clerk  of  the  county 
court  in  whose  office  such  record  is  proposed  to  be  made ; 
and  in  all  cases  the  certificate  of  any  judge,  that  the 
witness  appeared  before  him  and  acknowledged  his  sig- 
nature, or  that  the  handwriting  of  the  same  was  duly 
proven,  shall  be  sufiicient  evidence  to  authorize  the  clerk 
of  the  county  court  to  enter  the  title,  lien,  mortgage,  or 
other  color  of  title  upon  record;  and  said  clerk  for  re- 
cording the  same  shall  be  entitled  to  charge  and  receive 
the  sum  of  twenty-five  cents  for  every  hundred  words. 

§  44.  Above  Provisions  Obscure. — "The  above  provisions 
of  the  law  of  1836  are  not  a  little  obscure.  Section  35 
authorizes  record  providing  one  of  the  witnesses  of  the 
number  required  by  law  shall  swear  to  the  signature  of 

56  1  L.  T.  1215. 


§§45,46        EFFECT  OF  REGISTRATION  ACT  OF  1836.  34 

the  signer  or  he  shall  acknowledge  the  same.  By  sec- 
tion 38  it  is  declared  that  titles,  etc.,  cannot  be  admitted 
to  record  unless  proven  by  at  least  two  subscribing  wit- 
nesses if  living  in  the  county;  if  not  so  living  in  the 
county,  that  the  handwriting  shall  be  proven,  and  in  all 
cases  the  certificate  of  any  county  judge  that  the  witness 
appeared  before  him  and  acknowledged  his  signature,  or 
that  the  handwriting  of  the  same  was  duly  proven,  shall 
be  sufficient  evidence  to  authorize  the  clerk  of  the  county 
court  to  enter  such  title,  etc.,  upon  record.  The  first 
section  requires  one  witness  to  swear  to  the  signature 
of  the  signer.  The  second  requires  proof  by  two  sub- 
scribing witnesses,  if  living  in  the  county ;  if  not  so  liv- 
ing, then  the  handwriting  must  be  proven ;  but  the  hand- 
writing of  whom,  whether  of  the  witness  or  the  signer, 
is  not  stated;  and  the  phraseology  is  then  immediately 
changed  from  the  plural  to  the  singular  number,  and 
the  acknowledgment  of  the  said  witness  or  the  proof  of 
his  handwriting  is  held  to  be  sufficient.  The  first  re- 
quires proof  of  the  signature  of  the  signer;  the  second, 
at  least  in  its  last  provision,  is  satisfied  with  proof  of 
the  signature  of  the  witness."^'^ 

§  45.  Acknowledgment  by  Officer  Sufficient. — Under  said 
section  3.5,  authorizing  registration  on  the  acknowledg- 
ment of  the  signer,  it  was  held  that  where  this  officer 
who  executed  the  protocol  and  issued  to  the  grantee  the 
testimonio  or  second  original  appeared  before  the  county 
clerk  and  acknowledged  his  signature  to  the  certificate 
authenticating  the  testimonio,  it  was  sufficient  to  entitle 
it  to  registration.^® 

§  46.  Testimonio  Recorded  on  Proof  of  Handwriting. — 
The  testimonio  is  within  the  provision  of  the  act  of 
1836,  and  might  be  legally  admitted  to  record  upon 

57  Paschal  v.  Perez,  7  Tex.  357. 

58  Edwards  v.  James,  7  Tex.  377;   Gainer  v.  Cotton,  49  Tex.   104; 
McKissick  v.  Colquhoun,  18  Tex.  151;  Beaty  v.  Whitaker,  23  Tex.  528. 


35  EFFECT  OF  EEGISTEATION  ACT  OF  1836.         §§  47-50 

proof  of  the  handwriting  of  the  signer. ^^  It  might  also 
be  proved  for  record  by  proof  of  the  handwriting  of  the 
assisting  witnesses  and  commissioner. 


,  60 


§  47.     Where  Record  is  Made  It  is  Presumed  Proof  was 

Made Under  this  act  instruments  were  admissible  to 

record  upon  proof  of  the  handwriting  of  the  signer ;  and 
it  seems  that  where  the  record  was  made  tlie  presump- 
tion is  that  proof  was  adduced.®^  It  is  not  in  all  cases 
requisite  that  proof  of  the  instrument  for  record  should 
be  made  by  a  subscribing  witness.^^ 

§  48.  Proof  Must  be  Indorsed  on  Instrument,  When. — But 
under  the  act  of  January  19,  1839,  which  required  a 
certificate  of  acknowledgment  or  proof  to  be  indorsed 
on  the  instrument  and  become  a  part  of  the  record,  a 
deed  executed  in  1834  and  recorded  in  1841  without 
such  certificate  of  acknowledgment  of  proof  was  not  en- 
titled to  record.^ 

§  49.  Chief  Justices  Ex-oflicio  Notaries  Public. — Under 
this  act  chief  justices  of  the  county  court  were  ex-ofdcio 
notaries  public,  and  the  seal  of  the  county  court  was  the 
notarial  seal.^ 

§  50.  No  Seal  Necessary  Where  Acknowledgment  Taken  by 
County  Clerk,  When — Prior  to  the  act  of  May  12,  1846, 
where  an  acknowledgment  or  proof  was  made  before  the 
county  clerk,  in  whose  ofiice  the  instrument  was  to  be 
recorded,  or  before  the  court,  no  seal  was  necessary  to 
its  authentication,  but  thereafter  it  was.**® 

59  Word  V.  McKinney,  25  Tex.  269. 

60  De  Leon  v.  White,  9  Tex.  600. 

61  Paschal  v.  Perez,  7  Tex.  357;  McDonald  v.  Morgan,  27  Tex.  505. 

62  Paschal  v.  Perez,  7  Tex.  357;  McDonald  v.  Morgan,  27  Tex.  505. 
But  see  post,  §  48. 

63  Holliday  v.  Cromwell,  26  Tex.  194;  and  see  post,  §  414. 

64  H.  D.  241,  2588.  For  use  of  certified  copies  in  evidence,  see 
H.  D.,  arts.  744,  746. 

65  Waters  v.  Spofford,  58  Tex.  121. 


§  51  ACKNOWLEDGMENT  AND  PEOOF.  36 


CHAPTER  III. 

ACKNOWLEDGMENT  AND  PROOF. 

§   51.  Nature. 

§  53.  Object. 

§  54.  Origin   and  necessity. 

§  55.  Not  necessary  between  the  parties,  when. 

§  56.  Nor    in    case    of    assignment. 

§  57.  Not  necessary  in  case  of  a  railroad  company,  when. 

§  58.  Chattel  mortgage  need  not  be  acknowledged  when. 

§  59.  Acknowledgment   essential   to   married   woman 's   deed. 

§  60.  Wife  abandoned  by  husband  or  he  is  insane. 

§  61.  Married  woman's  oral  agreement. 

§  62.  Necessity  in  case  of  ancient  instruments. 

§  63.  Effect.' 

§   64.  Execution  not  proven  by. 

§  65.  Wife's   defective  acknowledgment  harmless  on  husband's 

deed. 

§  66.  Notice. 

§   67.  Acknowledgment,    how   shown   or   proved. 

§  51.  Nature. — Acknowledgment  is  the  act  of  a  per- 
son who  has  executed  an  instrument  in  writing,  appear- 
ing before  a  competent  officer,  and  acl^nowledging  the 
same,  with  a  view  of  entitling  it  to  registration,  or  hav- 
ing it  authenticated. 

The  authorities  of  other  states  are  about  equally  di- 
vided as  to  whether  acknowledgments  are  ministerial  or 
judicial  acts.^  It  seems  that  in  Texas,  as  it  does  not 
make  the  instrument  admissible  in  evidence  without 
proof  of  execution  (or  filing  in  the  court,  etc.),  and  is 
no  part  of  the  conveyance,  except  in  case  of  married 
women,  it  is  only  a  ministerial  act.  But  in  the  case  of 
the  acknowledgments  of  married  women,  whose  deeds 

1  For  effect  prior  to  1836,  see  ante,  §  4. 

2  1  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  487. 


37  ACKNOWLEDGMENT  AND  PROOF.  §§  53-56 

are  void  without  proper  acknowledgments,  they  are  held 
to  be  quasi  judicial  acts.^ 

§  53.  Object. — The  object  of  the  acknowledgment  in 
Texas  is  to  authenticate  the  instrument,  and  entitle  it 
to  registration.  It  is  not  taken  as  proof  of  execution 
in  the  courts."* 

§  54.  Origin  and  Necessity. — The  origin  is  statutory. 
They  were  designed  to  prevent  fraud  and  litigation  by 
providing  proper  proof  of  execution  before  the  instru- 
ment was  entitled  to  registration.  Acknowledgment  or 
proof  is  necessary  to  make  the  record  constructive  no- 
tice. Without  such  proper  acknowledgment  or  proof 
the  registration  of  instruments  would  not  be  construc- 
tive notice  to  subsequent  purchasers  and  creditors.^ 

§  55.  Not  Necessary  Between  the  Parties,  When. — Ac- 
knowledgments, except  in  case  of  married  women,  are 
no  part  of  the  deed,  and  are  not  necessary  between  the 
parties  and  others  affected  with  notice.® 

§  56.  Nor  in  Case  of  Assignment. — Article  65f  of  Sayles' 
Civil  Statutes  of  1887,''  requiring  assignments  for  ben- 
efit of  creditors  to  be  acknowledged,  is  not  mandatory, 
but  directory  only.® 

3  Johnson  v.  Taylor,  60  Tex.  364;  Bexar  Bldg.  etc.  Assn.  v. 
Heady,  21   Tex.  Civ.  App.   154,  50  S.  W.   1080,  57   S.  W.  583. 

4  Wiggins  V.  Fleishal,  50  Tex.  57;  McFaddin  v.  Preston,  54  Tex. 
407;    Coffey   v.   Hendricks,   66   Tex.   677,   2   S.   W.   47. 

5  Taylor  v.  Harrison,  47  Tex.  457,  26  Am.'  Rep.  304;  Hill  v.  Tay- 
lor, 77  Tex.  295,  14  S.  W.  366;  Kalamazoo  Nat.  Bank  v.  Johnson, 
5  Tex.  Civ.  App.  535,  24  S.  W.  350;  Hayden  v.  Moffett,  74  Tex.  647,  15 
Am.   St.   Rep.   866,   12   S.   W.   820. 

6  Clapp  V.  Engledow,  82  Tex.  296,  18  S.  W.  146;  McLain  v.  Cana- 
les  (Tex.  Civ.  App.),  25  S.  W.  29;  Frank  v.  Frank  (Tex.  Civ.  App.), 
25   S.  W.   819.     See   post,   §   59. 

7  Rev.  Stats.    1895,  art.  76. 

8  Tittle  V.  Vanlecr   (Tex.  Civ.  App.),  27  S.  W.   736. 


§§  57-60  ACKNOWLEDGMENT  AND  PEOOF.  38 

§  57.  Not  Necessary  in  Case  of  Railway  Company,  When. 
It  was  not  uecessary  in  case  of  a  railway  corporation, 
incorporated  under  laws  of  Texas,  attested  by  its  cor- 
porate seal,  to  entitle  it  to  registration,  from  April  16, 
1861,  to  December  2,  1871.^ 

§  58.  Chattel  Mortgage  Need  not  be  Acknowledged,  When. 
Where  the  original  chattel  mortgage  is  filed  with  the 
county  clerk  it  is  not  necessary  that  it  should  be  ac- 
knowledged ;  but  a  copy  can  be  filed  only  when  the  orig- 
inal has  been  acknowledged.  ■'^** 

§  59.  Acknowledgment  Essential  to  Married  Woman's  Deed. 
The  deed  of  a  married  woman  to  her  separate  property  or 
her  homestead,  made  after  the  passage  of  the  act  of  Feb- 
ruary 3,  1841,  without  a  proper  acknowledgment,  is  a 
nullity.*^  But  if  it  is  properly  acknowledged,  though 
defectively  certified,  it  is  not  void  for  all  purposes.^^ 

§  60.  Wife  Abandoned  by  Husband,  or  He  is  Insane. — 
Where  the  wife  is  abandoned  by  her  husband  she  may 
convey  her  property  as  a  single  person.*^  Also,  when 
he  is  insane.** 

§  61.  Married  Woman's  Oral  Agreement. — The  oral  lo- 
cative contract  of  a  married  woman  is  valid  without  ac- 
knowledgment*®    It  is  also  held  that  married  woman's 

9  See  post,  §§  558,  559. 

10  Boykin  v.  Eosenfield  &  Co.,  69  Tex.  119,  9  S.  W.  318;  Grounds 
V.  Ingram,  75  Tex.  514,  12  S.  W.  1118;  Hicks  v.  Ross,  71  Tex.  360, 
9  S.  W.  315. 

11  Berry  v.  Donley,  26  Tex.  737;  Jonson  v.  Taylor,  60  Tex.  365; 
Harris  v.  Wells,  85  Tex.  312,  20  S.  W.  68. 

12  Berry  v.  Donley,  26  Tex.  737;  Jonson  v.  Taylor,  60  Tex.  365; 
Harris  v.  Wells,  85  Tex.  312,  20  S.  W.  68;  Cross  v.  Everts,  28  Tex. 
532;  Looney  v.  Admanson,  48  Tex.  621;  Johnson  v.  Bryan,  62  Tex. 
623;  Cole  v.  Bammel,  62  Tex.  109.     See  chapter  10. 

13  Wright  V.  Hays,  10  Tex.  136,  60  Am.  Dec.  200;  Cheek  v.  Bel- 
lows, 17  Tex.  617,  67  Am.  Dec.  686;  Fnllerton  v.  Doyle,  18  Tex.  13. 

14  See  post,   §   273. 

15  Bennett  v.  Virginia  Ranch  etc.  Co.,  1  Tex.  Civ.  App.  321,  21 
S.  W.  128;  Arnold  v.  Attoway  (Tex.  Civ.  App.),  35  S.  W.  482;  Ikard 


39  ACKNOWLEDGMENT  AND  PROOF.  §§  61-63 

agreement  to  partition  is  not  void  because  there  is  no 
privy  acknowledgment.^^ 

§  62.  Necessity  in  Case  of  Ancient  Instruments. — It  is 
held  that  the  fact  that  a  deed  is  not  properly  acknowl- 
edged, when  offered  in  evidence  as  an  ancient  instru- 
ment, is  immaterial ;  but  it  will  be  noticed  that  in  both 
cases  cited,  the  grantors  were  not  married  women ;  had 
they  been,  the  rule  would  have  probably  been  the  re- 
verse. ■^'^ 

§  63.  Effect. — The  effect  of  acknowledgment  gener- 
ally is  to  entitle  the  instrument  to'  registration. -"^^  In 
the  case  of  a  married  woman,  its  effect  is  to  vitalize  her 
deed,  as  well  as  to  entitle  it  to  registration.^^  And  it 
is  held  that  under  the  law  in  force  in  1871,  the  effect  of 
the  acknowledgment  was  to  ratify  and  validate  the 
deed,  even  though  it  was  not  written  or  signed  by  the 
grantor.^*  The  subsequent  acknowledgment  by  the 
wife  does  not  necessarily  ratify  fraudulent  representa- 
tions made  by  the  husband,  in  making  the  sale.^*  An 
acknowledgment  by  an  infant  does  not  bind  her,  al- 
though she  represented  to  the  officer  that  she  was 
twenty-one  years  of  age,  unless  it  be  shown  that  the 
grantee  was  misled  thereby.^^  A  conveyance  of  the 
homestead  without  the  acknowledgment  of  the  wife  is 
not  color  of  title  within  the  meaning  of  the  three  years 

V.  Thompson,  81  Tex.  291,  16  S.  W.  1019;  Aycock  v.  Kimbrongh,  71 
Tex.  330,  10  Am.  St.  Rep.  743,  12  S.  W.  71;  Lecomte  v.  Toudouze, 
82  Tex.  213,  27  Am.  St.  Rep.  870,  17  S.  W.  1047. 

16  Betts  V.  Simmons  (Tex.  Civ.  App.),  35  S.  W.  50. 

17  See  Frost  v.  Wolf,  77  Tex.  461,  19  Am.  St.  Rep.  761,  14  S.  W. 
440;  Smith  v.  Cavitt,  20  Tex.  Civ.  App.  558,  50  S.  W,  168. 

18  Ante,  §  55. 

19  Post,  §   247. 

20  Newton  v.  Emerson,  66  Tex.  145,  18  S.  W.  348.  And  see 
Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  66,  34  S.  W.  369. 

21  Etheridge  v.  Price,  73  Tex.  602,  11  S.  W.   1039. 

22  Vogelsang  v.  Null,  67  Tex.  467,  3  S.  W.  451. 


§§64-67  ACKNOWLEDGMENT  AND  PROOF.  40 

statute  of  limitations.^^  An  acknowledgment  void  as 
to  the  wife  may  be  valid  as  to  the  husband.''*  A  eon- 
tract  made  between  the  husband  and  wife  and  another 
person  is  not  binding  on  any  party  until  acknowledged 
by  the  wife."'"^  A  deed  executed  by  the  husband  and 
wife  conveying  her  separate  estate,  but  not  acknowl- 
edged by  her,  is  a  nullity,  and  its  record  is  not  construc- 
tive notice  of  its  contents.^^ 

§  64.  Execution  not  Proven  by. — It  does  not  prove  the 
execution  of  the  instrument.^'' 

§  65.  Wife's  Defective  Acknowledgment  Harmless  on  Hus- 
band's Deed. — The  wife's  defective  acknowledgment  on 
deed  of  her  husband,  where  her  acknowledgment  is  not 
required,  is  harmless.^* 

§  66.  Notice. — Certificate  of  acknowledgment  is  no- 
tice of  facts  certified  therein  to  all  persons  claiming 
under  it.^^  Record  of  deed  in  which  clerk  fails  to  re- 
cord certificate  of  acknowledgment  is  not  constructive 
notice,^**  The  registration  of  a  deed  acknowledged  by 
one  of  several  signers  is  not  constructive  notice  of  the 
conveyance  by  the  others.^* 

§  67.  Acknowledgment,  How  Shown  or  Proved. — The 
best  evidence,  and  prior  to  September  1,  1879,  the  only 

23  Hussey  v.  Moser,  70  Tex.  45,  7  S.  W.  606. 

24  Murphy  v.  Eeynaud,  2  Tex.  Civ.  App.  470,  21  S.  W.  991;  Jacka 
V.  Dillon,  6  Tex.  Civ.  App.  192,  25  S.  W.  645. 

25  Gilbough  V.  Stahl  Building  Co.,  16  Tex.  Civ.  App.  448,  41  S. 
W.    535. 

2C  Fordtran  v.  Perry  (Tex.  Civ.  App.),  60  S.  W.  1000.  As  to  ef- 
fect of  authentication  prior  to  December  20,  1836,  see  ante,  §  4. 
As  to  effect  of  certificates,  see  §§   211-214,  275-278. 

27  Dennis  v.  Sanger,  15  Tex.  Civ.  App.  411,  39  S.  W.  998.  Ante, 
§§  53,  54. 

28  Bassett  v.  Martin,  83  Tex.  341,   18   S.  W.  587. 

20  Green  v.  Hugo,  81  Tex.  457,  26  Am.  St.  Eep.  824,  17  S.  W.  79. 

30  Dean  v.  Gibson   (Tex.  Civ.  App.),  48  S.  W.  57. 

31  See  Rork  v.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  "W.  1062. 


41  ACKNOWLEDGMENT  AND  PROOF.  §  67 

evidence,  of  acknowledgment  and  proof  was  the  certifl- 
eate  of  same  by  the  officer.^^  If  lost  or  destroyed,  the 
acknowledgment  and  certificate  of  same  may  be  proved 
by  secondary  evidence.^^ 

32  Post,   §§   211,  248-254,  275. 

33  Post,   §   190. 


HOW  MADE  AND  TAKEN.  42 


CHAPTER  IV. 

HOW   MADE   AND   TAKEN, 

Under  what  law. 

Prior  to  December  20,  1836. 

Act  of  December  20,  1836. 

Chief  justices  ex-officio  notaries. 
Acknowledgment  or  proof  by  one  witness. 
Time  in  which  record  was  to  be  made. 
Acknowledgment  or  proof  by  two  witnesses. 
No  form  prescribed. 

What    acknowledgment    and   proof    sufficient   under 
above  law. 
■    Acknowledgment    and    proof. 
What  sufficient. 
No  seal  was  necessary  when. 
Not  necessary  for  certificate  to  show  grantor  known 

to   officer. 
Substantial    compliance    necessary. 
Act  of  January  19,  1839,  required  certificate. 
Act  of  February  5,  1840'. 

Two  justices  of  the  peace. 
§  86.  Eepealed  when. 

§§     87-88.     Act   of  February  5,  1841. 

§  87.  Validates   want   of   authority   of   certain   officers. 

§  88.  Acknowledgment  and  proof  certified. 

Act    of   May   8,   1846 — Commissioners   of    deeds. 
Act  of  May  12,  1846. 

Acknowledgment,  how  taken. 
If  grantor  or  witness  unknown,  proof  made. 
Substantial  compliance  only  required. 
Acts   of   April   6,    1861,   and   January   14,    1862— Seal   of 

railway  company  sufficient  authentication. 
Act   of   March   6,   1863— Handwriting. 
Acts  of  November  13,  1866,  August  8,  1870,  August  13, 

1870,  May  6,  1871— Seal. 
Constitution  of  1875— Errors. 
Eevised  Statutes  of  1879  and  1895. 

Single    acknowledgment,    how    made. 

Identity. 

Certificate   of   officer. 

Form. 


§ 

68. 

§ 

69. 

70- 

-82. 

§ 

70. 

§ 

71. 

§ 

72. 

§ 

73. 

§ 

74. 

75- 

-77. 

§ 

78. 

§ 

79. 

§ 

80. 

§ 

81. 

§ 

82. 

§ 

83. 

§ 

84. 

§ 

85. 

§§ 

89-90. 

§§ 

91-94. 

§§ 

91-92. 

§  93. 

§  94. 

§  95. 

§  96. 

§  97. 

§  98. 

§§ 

99-104. 

§     99. 

§  100. 

§  101. 

§  102. 

43  HOW  MADE  AND  TAKEN.  §§  68, 69 

§  103.     Of  married  women,  how  taken. 
§  104.     Form  of  certificate  for  married  women. 
§  105.     How  made— Continued. 
§  106.     Through  the  telephone. 

§  107.     Final    title— Eevised    Statutes    of    1879    and    1895— Con- 
struction of  statutes. 
§  108.     Statutes  not  incorporated  in   Eevised  Statutes  repealed. 
§  109.     Validating  statutes  not  repealed. 
§  110.     Statutes  construed  as   continuation. 

By  corporations,  see  post,  §  553.     By  railway  companies, 
see  post,  §  558. 

Proof  by  subscribing  witnesses,   see  chapter  12. 

§  68.  Under  What  Law. — Acknowledgments  and  proof 
of  instrument  affecting  land  titles  in  this  state  must  be 
made  in  compliance  with  the  statutes  of  this  state.^ 
And  the  acknowledgment  must  be  taken  in  compliance 
with  the  statute  in  force  at  the  time  of  acknowledg- 
ment.^ But  a  substantial  compliance  is  all  that  is  re- 
quired.^ And  proof  must  be  made  in  compliance  with 
the  law  in  force  at  the  time  the  proof  is  made.* 

§  69.  Prior  to  December  20,  1836.— Previous  to  the  reg- 
istration act  of  December  20,  1836,  no  certificate  of  ac- 
knowledgment or  proof  was  required.  Conveyances  of 
real  property  were  made  by  a  notary  writing  the  convey- 
ance in  a  register  which  is  signed  by  the  parties,  the 
notary  and  subscribing  witnesses.  This  original  deed 
written  in  the  register  was  called  the  protocol,  a  copy  of 
which  protocol,  called  the  testimonio  or  second  original, 
was  delivered  to  the  purchaser  as  evidence  of  his  title. 
The  protocol  being  a  public  instrument,  there  was  no 
other  registration  of  same.® 

1  Sartor  v.  Bolinger,  59  Tex.  411;  Baker  v.  Westcott,  73  Tex.  129, 
11  S.  W.  157;  Birdseye  v.  Eogers   (Tex.  Civ.  App.),  26  S.  W.  841. 

2  Butler  V.   Dunagan,   19   Tex.   559;   post,   §§  440,  441,   1053. 

3  Deen  v.  Wills,  21  Tex.  646;  Belcher  v.  Weaver,  46  Tex.  294,  26 
A.m.   Eep.   267;   post,   §   218. 

4  Post,   §§  440,  441. 

5  See  ante,  §§  3,  25-34. 


§§  70-73  HOW  MADE  AND  TAKEN.  44 


ACT   OF  DECEMBER    20,    1836    (TAKING    EFFECT    FROM    PAP- 
SAGE). 6 

§  70.  Chief  Justices  Ex-oflicio  Notaries,  etc. — Section  34, 
in  providing  tliat  the  chief  justices  of  the  county  court 
shall  be  the  notary  public,  authorized  them  to  receive 
proof  or  acknowledgment  of  deeds,  etc.,  and  attest  the 
same  under  their  seal  of  office — ^to  wit,  the  seal  of  the 
county  court. 

§  71.  Acknowledgment  or  Proof  by  One  Witness. — Sec- 
tion 35  provided  that  clerks  of  the  county  courts  shall 
be  the  recorders  for  their  respective  counties,  and  shall 
record  all  deeds,  etc.,  provided  one  of  the  witnesses  of 
the  number  required  by  law  shall  swear  to  the  signature 
of  the  signer  or  he  himself  shall  acknowledge  the  same, 
which  shall  be  certified  by  the  recorder  and  form  part 
of  the  record.'' 

§  72.  Time  in  Which  Record  was  to  be  Made. — Section 
37  required  proof  and  record  of  deeds,  etc.,  within 
twelve  months  from  April  1,  1837,  but  the  part  requir- 
ing record  by  April,  1838,  was  repealed  by  the  act  of 
May  10,  1838.« 

§  73.  Acknowledgment  or  Proof  by  Two  Witnesses. Sec- 
tion 38  provided  that  titles,  etc.,  before  they  can  be  ad- 
mitted upon  record,  must  be  proven  by  at  least  two  sub- 
scribing witnesses  if  living  in  the  county ;  if  not  so  liv- 
ing in  the  county,  then  the  handwriting  shall  be  proven 
either  before  some  county  judge,  or  before  the  clerk  of 
the  county  in  whose  office  such  record  is  proposed  to  be 
made;  and  in  all  cases  the  certificate  of  any  county 
judge,  that  the  said  witness  appeared  before  him  and 
acknowledged  his  signature,  or  that  the  handwriting  of 

6  1  L.  T.  1215. 

7  H.  D.  2752. 

8  1  L.  T.  1478;  P.  D.  4981,  note. 


45  HOW  MADE  AND  TAKEN.  §§  74-77 

the  same  was  duly  proven,  shall  be  sufficient  evidence 
to  authorize  the  clerk  of  the  county  court  to  enter  the 
same  upon  record.^ 

§  74.  No  Form  Prescribed. — This  act  does  not  prescribe 
the  form  nor  substance  of  what  the  certificate  shall  con- 
tain, nor  clearly  require  one  in  all  cases.^^ 

§  75.  What  Acknowledgment  and  Proof  Sufficient  Under 
Above  Law. — Under  section  35  it  is  held  that  if  the  of- 
ficer who  had  executed  the  protocol,  and  who  had  issued 
to  the  interested  party  the  copy  or  second  original,  ap- 
peared before  the  county  register  and  acknowledged  his 
signature  to  the  certificate  authenticating  the  testi- 
monio,  it  would  be  sufficient  to  have  authorized  its  rec- 
ord.*^ 

§  76.  Idem — It  is  also  held  that  this  section  contem- 
plates proof  or  acknowledgment  of  the  signature  of  the 
signer.  But  that  section  38,  in  some  contingencies, 
would  be  satisfied  by  the  proof  of  the  signature  of  a 
single  witness. ^^  It  is  not  requisite  in  all  cases  that 
the  proof  of  an  instrument  for  record  should  be  made  by 
a  subscribing  witness.  Besides,  the  officer  authenticat- 
ing' the  instrument  may  iDrove  it  as  a  subscribing  wit- 
ness.*^ 

§  77.  Idem. — In  discussing  these  sections  Judge 
Hemphill  says  that:  "The  thirty-fifth  section  requires 
one  witness  to  swear  to  the  signature  of  the  signer. 
The  thirty-eighth  section  requires  proof  by  two  sub- 
scribing witnesses,  if  living  in  the  county;  if  not  so  liv- 
ing,   then  the   handwriting  must    be    proved;    but  the 

9  H.    D.    2755. 

10  See  post,  §§  220-222. 

11  Edwards  v.  .James,  7  Tex.  377;  Beaty  v.  Whitaker,  23  Tex.  526; 
Gainer  v.  Cotton,  49  Tex.  115. 

12  McKissick  v.   Colquhoun,   18   Tex.   152. 
i::   McKissick    v.   Colqulioiin,    18   Tex.    1-52. 


§§78,79  HOW  MADE  AND  TAKEN.  46 

handwriting  of  whom,  whether  of  the  witnesses  or  of 
the  signer,  is  not  stated;  and  the  phraseology  is  then 
immediately  changed  from  the  plural  to  the  singular 
number,  and  the  acknowledgment  of  the  said  witness  or 
the  proof  of  his  handwriting  is  held  to  be  sufficient 
The  first  requires  proof  of  the  signature  of  the  signer. 
The  second,  at  least  in  its  provision,  is  satisfied  with 
proof  of  the  signature  of  the  witness.  In  the  first  the 
witnesses  are  not  specially  described  as  subscribing  wit- 
nesses; and  it  is  probable  that,  upon  this  construction, 
proof  was  admitted  by  the  clerk  of  the  signature  of  the 
signer  as  sufficient  proof  to  admit  the  paper  to  record. 
This  may  be  deemed  a  departure  from  the  literal  import 
of  the  terms  employed  in  the  statute,  but  it  accords  with 
its  spirit  and  intent.  Its  object  or  policy  was  to  require 
evidences  of  claims  to  lands  to  be  spread  upon  a  public 
record,  so  that  third  persons  might  be  satisfied  of  their 
existence  and  of  the  titles  by  which  they  were  sup- 
ported; and  if  the  instrument  under  which  title  is 
claimed  be  legal  and  authentic  without  subscribing 
Avitnesses,  it  would  require  language  too  plain  to  be  mis- 
taken to  exclude  it  from  record  for  the  want  of  proof 
by  such  witnesses,  the  signature  of  the  signer  being  sub- 
stantiated by  satisfactory  proof. "-^^ 

§  78.  Acknowledgment  and  Proof. — The  act  of  Decem- 
ber 20,  1836,  requires  acknowledgment  or  proof,  or  if  it 
is  a  public  archive,  there  must  be  a  certificate  of  the 
keeper  to  that  effect.^^ 

§  79.     What  Sufficient It  is  held  that  where  the  chief 

justice  of  the  county  court  certified  "that  the  within  in- 
strument was  duly  proven  before  me  the  twentieth  day 
of  February,  1838,"  it  was  not  sufficient  to  entitle  it  to 
record. -^^ 

14  Paschal   v.   Perez,   7   Tex.   357. 

15  Holliday   v.    Cromwell,   26    Tex.    194. 

16  Fleming  v.  Eeed,   37  Tex.   152. 


47  HOW  MADE  AND  TAKEN.  §§  80-83 

§  80.  No  Seal  was  Necessary  When. — It  seems  that 
where  the  acknowledgment  or  proof  was  made  before 
the  county  clerk  in  whose  office  the  instrument  was  to 
be  recorded,  or  before  the  court,  no  seal  was  necessary 
to  its  authentication.*'' 

§  81.  Not  Necessary  for  Certificate  to  Show  Grantor 
Known  to  Officer. — It  was  not  necessary  for  the  certificate 
to  certify  that  the  person  acknowledging  the  instrument 
was  known  to  the  officer.*® 

§  82.  Substantial  Compliance  Necessary. — A  substantial 
compliance  with  the  statute  is  all  that  is  required.*® 

§  83.  Act  of  January  19,  1839,  Required  Certificate. — 
The  act  of  January  19,  1839  (taking  effect  from  pas- 
sage),^** made  it  the  duty  of  the  county  clerks  to  record 
all  deeds,  etc.,  presented  to  them  for  record,  provided 
one  of  the  subscribing  witnesses  shall  swear  to  the  sig- 
nature of  the  signer,  or  he  himself  shall  acknowledge 
the  same,  which  proof  or  acknowledgment  shall  be  made 
either  before  some  county  court  or  chief  justice  of  same, 
or  before  the  clerk  in  whose  office  such  instrument  is 
proposed  to  be  recorded,  and  a  certificate  of  which  shall 
be  made  upon  such  instrument  by  the  proper  officer 
and  form  part  of  the  record.  This  act  also  provides 
that  copies  from  deeds  in  public  archives,  executed  in 
conformity  with  the  laws  existing  at  their  dates,  duly 
certified  by  the  proper  officers,  shall  be  admitted  to  rec- 
ord in  the  county  where  such  land  lies.  This  act  re- 
peals conflicting  laws.     It  required  a  certificate  of  ac- 

17  Waters  v.  Spofford,  58   Tex.   121. 

18  See  post,  §§   139-146. 

19  See  post,  §  218,  and  "Validating  Statutes,"  §  1006,  etc.  As  to 
whether  or  not  a  certificate  ia  required  by  a  county  clerk  under  this 
law,  see  post,  §§  220-222. 

20  P.   D.  4974;   2   L.   T.   52. 


§§  S4, 85  HOW  MADE  AND  TAKEN.  48 

knowledgment  or  proof  to  be  indorsed  on  tlie  instru- 
ment and  become  part  of  the  record,^^ 

§  84.  Act  of  February  5,  1840. — The  Act  of  February 
5,  1S40  (taking  effect  March  16,  1840),^^  authorized 
clerks  of  the  county  courts  and  their  deputies  to  record 
deeds,  etc.,  on  the  acknowledgment  of  the  parties,  or  the 
proof,  on  oath,  of  the  acknowledgment  of  the  legal  num- 
ber of  witnesses  thereto  made,  in  the  offices  of  the  re- 
spective clerks;  or  upon  the  certificate  of  some  district 
judge  or  chief  justice,  or  notary  public  of  a  county, 
with  the  seal  of  his  office  thereunto  annexed  that  such 
acknowledgment  was  made,  or  the  execution  of  the  in- 
strument proven  as  required,  by  two  subscribing  wit- 
nesses to  be  his,  her  or  their  act;  and  any  conveyance 
so  recorded  shall  have  the  same  legal  validity,  in  all 
respects,  as  if  it  were  proven  in  open  court.  This  act 
provided  no  form  except  for  two  justices  of  the  peace, 
as  seen  in  the  next  section.  Did  this  act  require  certifi- 
cate by  county  clerk  where  acknowledgment  or  proof 
was  made  before  him?^^ 

§  85.  Two  Justices  of  the  Peace. — Section  6  of  same 
act^^  further  provided  that  "any  deed  may  in  like  man- 
ner be  admitted  to  record,  upon  the  certificate,  under 
seal,  of  any  two  justices  of  the  peace,  for  any  county  in 
this  Republic,  annexed  to  such  deeds  and  to  their  full 

effect,   to  wit:  Republic   of  Texas,    County   of . 

We,  A  B  and  C  D,  justices  of  the  peace  in  the  county 
aforesaid,  do  hereby  certify  that  E  F,  a  party  (or  E  G 
and  G  M,  etc.,  parties)  to  a  certain  deed  bearing  date  on 
the day  of ,  and  hereto  annexed,  person- 
ally appeared   before  us  in  our  county    aforesaid,  and 

21  HoUiday  v.  Cromwell,  26  Tex.  194;  McCarty  v.  Johnson,  20 
Tex.  Civ.  App.  184,  49  S.  W.  1100;  Wood  v.  Welder,  42  Tex.  409. 

22  P.  D.  4975;  2  L.  T.  328. 

23  See  post,  §§  220,  222,  228. 

24  P.  D.  4976. 


49  HOW  MADE  AND  TAKEN.  §§  86-88 

acknowledged  the  same  to  be  his  (or  their)  act  or  deed, 
but  desired  us  to  certify  the  said  acknowledgment  to 

the  clerk  of  the  county  of ,  in  order  that  the  said 

deed  may  be  given  under  our  hands  and  seals  this 

day  of . 

A  B.     [L.  S.] 
C  D.     [L.  S.]" 

§  86.  Repealed  When. — This  section  was  repealed  by 
the  act  of  May  12, 1846.^^ 

ACT    OF   FEBEUAEY   .5,    1841. 

§  87.  Validates  Want  of  Authority  of  Certain  Officers. — 
This  act  (taking  effect  from  passage)  ^^  validates  the 
registration  of  all  deeds,  etc.,  heretofore  registered,  pro- 
vided they  shall  have  been  acknowledged  by  the  grantor 
or  grantors,  maker  or  makers,  before  any  chief  justice 
of  the  county  court,  or  before  any  notary  public,  or  be- 
fore a  clerk  of  the  county  in  whose  oflflce  such  record  is 
proposed  to  be  made  or  proven  before  such  officer  by 
one  or  more  of  the  subscribing  witnesses  and  certified 
by  such  officer,  any  obscurity  in  the  existing  laws  to  the 
contrary  notwithstanding. 

§  88.  Acknowledgment  and  Proof  Certified. — Section  20 
of  this  act  provides  that  deeds,  etc.,  hereafter  to  be  re- 
corded shall  be  duly  registered  upon  the  acknowledg- 
ment of  the  grantor,  before  the  register  or  clerk  of  the 
county  court,  or  chief  justice  of  the  county,  or  notary 
public  thereof,  or  any  associate  or  chief  justice  of  the 
supreme  court,  or  proved  by  a  subscribing  witness  be- 
fore any  such  officer,  and  certified  by  him  for  record, 
and  if  so  acknowledged  and  certified,  there  need  be  no 
subscribing  witnesses,  and  if  executed  abroad  shall  be 

25  See  Eogors  v.  Watroiis,  8  Tex.  62,  .58  Am.  Dec.  100;  State  v. 
Delesdenier,  7  Tex.  76;  Harrison  v.  Knight,  7  Tex.  47;  Bryan  v. 
Sundberg,   5   Tex.   418. 

26  2   L.   T.   633. 

4 


§§  89-91  now  MADE  AND  TAKEN.  50 

acknowledged  or  proven  by  two  subscribing  witnesses 
before  any  circuit  or  supreme  judge,  or  cliancellor  of 
the  United  States  of  North  America,  certified  by  him, 
with  the  certificate  of  the  chief  magistrate  of  the  United 
States,  as  to  the  official  character  of  him  taking  the 
acknowledgment,  or  probate,  and  the  great  seal  of  the 
United  States  thereto  annexed,  or  if  so  acknowledged  or 
proven  before  any  judge  of  a  supreme  court  of  record, 
or  in  any  such  court  of  any  other  nation  or  kingdom, 
and  certified  by  such  judge,  or  the  record  thereof  exem- 
plified, and  either  so  counter  certified  by  the  chief  mag- 
istrate or  sovereign  of  such  other  nation  or  kingdom 
under  the  great  seal  or  by  the  consul  of  this  Republic, 
or  minister  resident  there,  the  same  shall  be  admitted 
to  record,  and  shall  be  good  and  effectual  as  aforesaid, 
from  and  after  its  registration.-''  This  act  makes  a 
certificate  necessary,  but  provides  no  form  of  certifi- 
cate.^® 

ACT  OF  MAY  8,  1846   (TAKING  EFFECT  JUNE   22,  1846). 29 

§  89.  Commissioners  of  Deeds. — This  act  required  com- 
missioners of  deeds  to  take  acknowledgments  and  proofs 
of  instrument  for  record,  in  the  manner  directed  by  the 
laws  of  this  state,  and  certified  by  the  commissioner 
taking  same  under  his  seal,  which  certificate  shall  be 
indorsed  on  or  annexed  to  said  deed.  But  it  provided 
no  form  of  certificate. 

§  90.  Not  Repealed. — This  act  was  not  repealed  by 
the  act  of  May  12,  1846.3» 


ACT  OF  MAY  12^  1846   (TAKING  EFFECT  JULY  13,  1846). 31 

§  91.    Acknowledgment,  How  Taken. — This  act  prescribes 
no  form  of  certificate,   but  section  7  provides   that  the 


27  Post,  §  620. 

28  See  post,  §§  1000,  1006,  1018,  1021. 

29  2  L.  T.  1493. 

30  Monroe  v.  Arledge,   23   Tex.   481. 

31  2   L.    T.    1543. 


51  HOW  MADE  AND  TAKEN.  §§  92-95 

acknowledgments  of  deeds  shall  be  by  the  person  ap- 
pearing before  any  authorized  officer,  and  ^'stating  that 
he  had  executed  the  same  for  the  considerations  and 
purposes  therein  stated,  and  the  officer  taking  such  ac- 
knowledgment shall  make  a  certificate  thereof,  sign  and 
seal  the  same  with  his  seal  of  office." 

§  92.  Idem. — This  section  ( 7)  is  still  in  force,  but  the 
Eevised  Statutes  of  1879  provided  a  form  of  certificate 
also,   which   form  used   the  clause   "known  to   me  (or 

proved  to  me  on  oath  of )  to  be  the  person  whose 

name  is  subscribed  to  the  foregoing  instrument. "^^ 

§  93.  If  Grantor  or  Witness  Unknown,  Proof  Made.^Sec- 
tion  10  of  this  act  provides  that  if  the  grantor  or  person 
who  executed  such  instrument,  or  subscribing  witness, 
shall  be  unknown  to  the  officer,  his  identity  "shall  be 
proven  to  such  officer,  which  proof  may  be  made  by  wit- 
nesses known  to  the  officer,  or  the  affidavit  of  the 
grantor,  or  person  who  executed  the  instrument,  or 
subscribing  witness,  if  such  officer  shall  be  satisfied 
therewith,  which  proof  or  affidavit  shall  also  be  in- 
dorsed in  such  instrument  of  writing."^^ 

§  94.  A  Substantial  Compliance  Only  Required. — A  lit- 
eral compliance  with  the  statute  is  not  required;  only 
a  substantial  compliance.  The  material  matter  to  be 
embraced  in  the  acknowledgment  is  the  execution  of 
the  deed.*^ 

§  95.  Acts  of  April  6,  1861;  January  14,  1862— Seal  of 
Eailroad  Company  Sufficient  Authentication. — The  acts  of 
April  6,  1861,  and  January  14,  1862  (both  taking  effect 

32  Stephens  v.  Motl,  81  Tex.  119,  16  S.  W.  731;  Sloan  v.  Thompson, 
4  Tex.  Civ.  App.  426,  23  S.  W.  613;  Watkins  v.  Hall,  57  Tex.  1;  post, 
§  102. 

3.3   See  post,   §   139. 

34  Monroe   v.   Arledge,   23   Tex.  479. 


S§  96-98  HOW  MADE  ANT)  TAKEN.  52 

from  passaoje)  ,^^  require  certificates  of  acknowleds^ments 
or  proof  to  be  attested  under  the  official  seals  of  ofiQcers 
taking  the  same;  but  do  not  prescribe  a  form  of  cer- 
tificate. They  both  provide  that  conveyances  executed 
by  the  president  of  any  railroad  company,  which  has 
been  or  may  be  incorporated  by  the  laws  of  this  state, 
shall  be  attested  by  the  seal  of  said  company,  which 
shall  be  considered  suflaciently  authenticated  to  author- 
ize the  clerk  of  the  county  court  to  record  the  same.^® 

§  96.  Act  of  March  6,  1863— Handwriting.— The  act  of 
March  6,  1863  (taking  effect  from  passage),^''  amended 
section  9  of  act  of  May  12,  1846,  by  the  addition  of  the 
clause  providing  that  when  the  grantor  or  person  who 
executed  such  instrument,  signed  by  making  his  mark, 
proof  of  the  handwriting  of  both  of  the  subscribing  wit- 
nesses shall  be  required.      ( It  provided  no  form.) 

§  97.  Acts  of  November  13,  1866,3s  August  8,  1870,^9  Au- 
gust 13,  1870,40  and  May  6,  1871^1— Seal.— These  acts  re- 
quiring certificates  of  acknowledgment  and  proof  to  be 
attested  under  olBflcial  seal,  make  no  provision  as  to 
the  form  or  substance  of  same. 

§  9'8.  Constitution  of  1875— Errors. — Article  13,  section 
4,  of  constitution  of  November  24,  1875,  referring  to 
titles  issued  prior  to  November  13,  1835,  indicates  that 
mere  error  in  the  certificate  of  registration  or  any  in- 
formality not  affecting  the  fairness  and  good  faith  of 
the  holder  thereof,  with  which  the  record  was  made, 
shall  not  be  held  to  vitiate  such  record. 

35  5  L.  T.  373,  501. 

36  Brownson  v.  Scanlan,  59  Tex.  229. 

37  5  L.  T.  614. 

38  5  L.  T.  1128. 

39  6  L.  T.  223. 

40  6  L.  T.  251. 

41  6  L.  T.  979. 


53  HOW  MADE  AND  TAKEN.  §§99-102 


REVISED    STATUTES    OF    1879,    1895. 

§  99.  Single  Acknowledgments,  How  Made. — Article  4308 
of  the  Revised  Statutes  of  1879  and  article  4616  of  the 
Revised  Statutes  of  1895,  are  as  follows:  ''The  ac- 
knowledgment of  an  instrument  of  writing  for  the  pur- 
pose of  being  recorded  shall  be  by  the  grantor  or  person 
who  executed  the  same  appearing  before  some  ofiQcer 
authorized  to  take  such  acknowledgment,  and  stating 
that  he  had  executed  the  same  for  the  consideration  and 
purposes  therein  stated ;  and  the  oflacer  taking  such  ac- 
knowledgment shall  make  a  certificate  thereof,  sign  and 
seal  the  same  with  his  seal  of  offlce."^^ 

§  100.  Identity Article  4309  of  the  Revised  Stat- 
utes of  1879,  and  article  4617  of  the  Re\dsed  Statutes 
of  1895  (taking  effect  September  1,  1879),  provided  that 
no  acknowledgment  of  any  instrument  of  writing  "shall 
be  taken  unless  the  officer  taking  it  knows,  or  has  satis- 
factory evidence  on  the  oath  or  affirmation  of  a  credible 
witness,  which  shall  be  noted  in  his  certificate,  that  the 
person  making  such  acknowledgment  is  the  individual 
who  executed,  and  is  described  in  the  instrument.  This 
is  virtually  the  same  as  section  10  of  May  12,  1846.' 


>43 


§  101.  Certificate  of  Officer.— Article  4619  of  the  Re- 
vised Statutes  of  1895,  and  article  4311  of  the  Revised 
Statutes  of  1879:  "Any  officer  taking  the  acknowledg- 
ment of  a  deed  or  other  instrument  of  writing  must 
place  thereon  his  oflQcial  certificate,  signed  by  him  and 
given  under  his  seal  of  office,  substantially  in  form  as 
hereinafter  prescribed." 

§  102.  Form.— Article  4620  of  the  Revised  Statutes 
of  1895  and  article  4312  of  the  Revised  Statutes  of  1879 : 

42  Act  of  May  12,  1846. 

43  See  ante,  §  93. 


§§103,104  HOW  MADE  AND  TAKEN.  54 

The  form  of  an  ordinary  certificate  of  acknowledgment 
must  be  substantially  as  follows : 

"State  of , 


County  of 

Before  me (here  insert  name  and  character 

of  officer),  on  this  day  personally  appeared  , 

known  to  me  ( or  proved  to  me  on  the  oath  of ) 

to  be  the  person  whose  name  is  subscribed  to  the  forego- 
ing instrument,  and  acknowledged  to  me  that  he  ex- 
ecuted the  same  for  the  purposes  and  consideration 
therein  expressed. 

Given  under  my  hand  and  seal  of  office  this day 

of ,  A.  D. 

[Seal]     ' ." 

§  103.  Of  Married  Women,  How  Taken.^* — Article  4618 
of  the  Revised  Statutes  of  1895 :  '^No  acknowledgment 
of  a  married  woman  to  any  conveyance  or  other  instru- 
ment purporting  to  be  executed  by  her  shall  be  taken 
unless  she  has  had  the  same  shown  to  her,  and  then  and 
there  fully  explained  by  the  officer  taking  the  acknowl- 
edgment, on  an  examination  privily  and  apart  from  her 
husband ;  nor  shall  he  certify  to  the  same  unless  she 
thereupon  acknowledges  to  such  officer  that  the  same  is 
her  act  and  deed,  that  she  has  willingly  signed  the 
same,  and  that  she  wishes  not  to  retract  it."^^ 

§  104.  Form  of  Certificate  for  Married  Women. — Article 
4621:  The  certificate  of  acknowledgment  of  a  married 
woman  must  be  substantially  in  the  following  form : 

"State  of , 


County  of 

Before    me (here    insert   the    name   and 

character  of  the  officer)  on  this  day  personally  appeared 

44  See  chapters  10  and  11. 

45  Act  of  April  30,  1846. 


55  HOW  MADE  AND  TAKEN.  §§  105,  106 

,  wife  of ■ — ,  known  to  me  (or 


proved   to  me   on  oath   of  - — ■ )  to  be   the   person 

whose  name  is  subscribed  to  the  foregoing  instrument, 
and  having  been  examined  by  me  privily,  and  apart 
from  her  husband,  and  having  the  same  fully  explained 
to  her,  she,  the  said  ,  acknowledged  such  in- 
strument to  be  her  act  and  deed,  and  declared  that  she 
had  willingly  signed  the  same  for  the  purposes  and  con- 
sideration therein  expressed,  and  that  she  did  not  wish 
to  retract  it. 

Given  under  my  hand  and  seal  of  office  this day 

of — ,  A.  D. 

[Seal] ." 

§  105.  How  Made — Continued. — An  acknow^ledgment 
is  made  by  a  person  appearing  before  an  authorized  of- 
ficer and  acknowledging  the  same  to  the  officer,  for 
the  purpose  of  entitling  it  to  registration,  and,  in  case 
of  a  married  woman's,  giving  it  authenticity.  A  casual 
admission  in  the  presence  of  a  notary  by  a  person  who 
has  signed  an  instrument  that  he  executed  it  does  not 
authorize  the  officer  to  certify  that  he  had  acknowl- 
edged it.  In  order  to  call  into  exercise  the  authority 
of  the  officer  to  make  the  certificate,  the  grantor  must 
appear  before  him  for  the  purpose  of  acknowledging 
the  instrument,  and  his  admission  that  he  executed  it 
must  be  made  with  a  view  to  give  it  authenticity,  other- 
wise the  act  of  the  officer  would  be  a  nullity.*^ 

§  106.  Through  the  Telephone. — In  California,  an  ac- 
knowledgment of  a  married  w^oman  taken  through  a 
telephone  was  held  to  be  valid.  The  objection  was  made 
that  at  the  time  the  deeds  were  acknowledged  the 
grantor  was  a  married  woman,  and  was  not  visibly,  and 
therefore  not  personally,  present  before  the  notary  at 
the  time  he  took  the  acknowledgment  through  a  tele- 
phone, she   then  being   three  miles   distant  from   him. 

46  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 


§§  107, 108        HOW  MADE  AND  TAKEN.  56 

The  court  says:  "The  answer  to  this  objection  is,  that 
in  the  absence  of  fraud,  duress,  accident  and  mistake, 
the  certijBlcate  of  the  notary  in  due  form  of  law  is  con- 
clusive of  the  material  facts  therein  stated It  is 

admitted  that  the  certificate  of  the  notary  is  in  due 
form ;  and  it  is  not  alleged  or  pretended  by  the  defend- 
ant that  she  did  not  voluntaril}'  sign  and  deliver  the 
deeds;  nor  that  she  did  not  voluntarily,  and  without 
the  hearing  of  her  husband,  acknowledge  the  execution 
of  them  through  the  telephone,  after  having  been  in- 
formed by  the  notary  of  their  contents;  nor  that  any 
deception  or  fraud  was  practiced  to  induce  her  to  ex- 
ecute the  deeds;  nor  even  that  the  plaintiffs  had  notice 
of  the  manner  in  which  it  is  alleged  that  she  acknowl- 
edged the  execution  through  the  telephone These 

particulars  are  not  stated  for  the  purpose  of  maintain- 
ing that,  under  any  circumstances,  an  acknowledgment 
of  a  deed  may  be  taken  through  a  telephone,  but  for  the 
sole  purpose  of  showing  that  there  was  no  pretended 
fraud,  duress,  or  mistake."*'' 

§  107.  Final  Title — Revised  Statutes  of  1879  and  1895 — 
Construction  of  Statutes. — Section  3 :  That  the  rule  of  the 
common  law  that  statutes  in  derogation  thereof  shall 
be  strictly  construed  shall  have  no  application  to  the 
Revised  Statutes,  but  the  said  statutes  shall  constitute 
the  law  of  this  state  respecting  the  subjects  to  which 
they  relate,  and  the  provisions  thereof  shall  be  liberally 
construed  with  a  view  to  effect  their  objects  and  to  pro- 
mote justice. 

§  108.  Statutes  not  Incorporated  in  Revised  Statutes  Re- 
pealed.— Section  4:  That  all  civil  statutes  of  a  general 
nature,  in  force  when  the  Revised  Statutes  take  effect, 
and  which  are  not  included  herein,  or  which  are  not 
hereby  expressly  continued  in  force,  are  hereby  repealed. 

47  Banning  v.  Banning,  80  Cal.  271,  13  Am.  St.  Eep.  156,  22  Pac. 
210.  And  see  Central  U.  Tel.  Co.  v.  Falley,  118  Ind.  194,  10  Am.  St. 
Eep.   135,  20  N.  E.  145. 


57  HOW  MADE  AND  TAKEN.  §§  109, 110 

§  109.  Validating  Statutes  not  Repealed. — Section  7: 
That  no  general  or  special  law  heretofore  enacted  val- 
idating or  legalizing  the  acts  or  omissions  of  any  offi- 
cer, or  any  act  or  proceeding  whatever,  shall  be  affected 
by  the  repealing  clause  of  this  title;  but  all  such  vali- 
dating or  legalizing  statutes  whatsoever  now  in  force  in 
this  state  are  hereby  continued  in  force,  and  the  same 
shall  be  as  effectual  for  all  purposes  after  as  before  the 
Revised  Statutes  go  into  effect. 

§  110.  Statutes  Construed  as  Continuation. — Section  19 : 
That  the  provisions  of  the  Revised  Statutes,  so  far  as 
they  are  substantially  the  same  as  the  statutes  of  this 
state  in  force  at  the  time  when  the  Revised  Statutes 
shall  go  into  effect,  or  of  the  common  law  in  force  in 
this  state  at  said  time,  shall  be  construed  asi  continua- 
tions thereof,  and  not  as  new  enactments  of  the  same. 


§§111-113     PLACE  OF  TAKING  ACKNOWLEDGMENTS.  58 


CHAPTER  V. 

PLACE  OF  TAKING  ACKNOWLEDGMENTS. 

§  111.     General  rule. 

§  112.  County  clerks  not  authorized  where  deed  is  to  be  recorded 
without  their  county,  when. 

§  113.  Chief  justices  of  the  county  courts  may  not  have  been  au- 
thorized where  deed  was  to  be  recorded  without  their 
counties,  when. 

§  114.     Presumption    is    that    officer    acted    within    jurisdiction. 

§  115.     Must  be  taken  in  compliance  with  laws  of  Texas. 

§  111.  General  Rule. — In  this  state,  the  general  rule 
has  been  that  officers  may  take  acknowledgments  within 
their  jurisdictions  of  instruments  to  be  recorded  any- 
where/ but  there  are  some  exceptions  to  this  rule.^ 

§  112.  County  Clerks  not  Authorized  Where  Deed  is  to  be 
Recorded  Without  Their  County,  When. — From  December 
20,  1836,  to  July  13,  1846,  county  clerks  were  not  au- 
thorized to  take  acknowledgments  of  instruments  to  be 
recorded  without  their  counties.^  The  same  rule,  of 
course,  would  apply  to  their  deputies, 

§  113.  Chief  Justices  of  the  County  Courts  may  not  have 
been  Authorized  Where  Deed  was  to  be  Recorded  Without 
Their  Counties,  When. — From  March  17,  1841,  to  July  13, 
1846,  chief  justices  of  the  county  courts  may  not  have 
been  authorized  to  take  single  acknowledgments  of  in- 

1  Coffey  V.  Hendricks,  66  Tex.  679,  2  S.  W.  47;  Peterson  v.  Lowry, 
48  Tex.  412.  And  see  Clements  v.  San  Antonio,  34  Tex.  26;  post,  § 
595. 

2  Beaumont  Pasture  Co.  v.  Preston,  65  Tex.  456;  post,  §  1021. 
For  rule  elsewhere,  see  Livingston  v.  Kettelle,  41  Am.  Dec.  171,  172; 
1  Cyc.  556. 

3  Post,  §§  938-958. 


69  PLACE  OF  TAKING  ACKNOWLEDGMENTS.     §§  114,  115 

struments  to  be  recorded  without  their  counties.'*  The 
same  rule  would  apply  to  associate  justices  of  county 
courts.^ 

§  114.  Presumption  is  that  Officer  Acted  Within  Juris- 
diction.— Where  the  contrary  is  not  shown  by  the  cer- 
tificate, the  presumption  is  that  the  officer  was  acting 
within  his  jurisdiction.^ 

§  115.  Must  be  Taken  in  Compliance  with  Laws  of  Texas. 
Acknowledgments  taken  without  this  state  must  be 
taken  in  accordance  with  the  laws  of  this  state,  and  be- 
fore the  officers  authorized  by  the  laws  of  this  state.'' 

4  Post,   §   866. 

5  Post,  §  866. 

6  Peterson  v.  Lowry,  48  Tex.  412;  Livingston  v.  Kettelle,  41  Am. 
Dec.  171;  Henke  v.  Stacy,  25  Tex.  Civ.  App.  272,  26  Am.  Eep.  310, 
note,  61  S.  W.  511;  post,  §  130. 

7  Ante,  §  68. 


§§  116-119     TIME  OF  TAKING  ACKNOWLEDGMENT.  60 


CHAPTER  VI. 

TIME   OF  TAKING  ACKNOWLEDGMENT. 

§  116.  Generally. 

§  117.  Incomplete   deed. 

§  119.  Acknowledgment    relates   back   to    execution    of    deed,   when. 

§  120.  Married  woman's  acknowledgment  relates  back,  when. 

§  121.  Husband  and  wife  may  acknowledge  deeds  at  different  times. 

§  122.  On  Sunday  or  legal  holiday. 

§   123.  Acknowledgment   invalid    at   time   made. 

§  116.  Generally. — An  instrument  may  be  acknowl- 
edged at  any  time  after  its  execution.^ 

§  117.  Incomplete  Deed. — It  seems  well  settled  in  this 
state  that  the  acknowledgment  of  an  incomplete  deed 
in  some  instances  is  valid ;  as.  where  the  grantee's  name 
was  omitted,  and  authority  given  an  agent  to  supply  the 
omission  at  some  future  time.^  Also  where  acknowl- 
edgment was  taken  and  the  description  of  the  property 
was  omitted  with  authority  to  insert  afterward.^  While 
in  the  above  cases  the  grantors  were  not  married 
women,  is  there  any  reason  for  applying  a  different  rule 
to  deeds  of  married  women?  The  same  rule  exists  in 
the  state  of  Minnesota.^ 

§  119.  Acknowledgment  Relates  Back  to  Execution  of 
Deed,  When. — Acknowledgments  of  deeds  of  other  per- 
sons than  married  women  relate  back  to  the  execution 

1  Fisher  v.  Butcher,  19  Ohio,  406,  53  Am.  Dec.  436. 

2  Threadgill    v.    Butler,    60    Tex.    601;    Schleicher   v.    Kunge    (Tex. 
Civ.  App.),  37  S.  W.  984. 

3  Henke  v.   Stacy,  25  Tex.  Civ.  App.  272,  61   S.  W.  511;   Howard 
V.  Kellam  (Tex.),  8  S.  W.  96. 

4  Eoussian  v.  Norton,  53  Minn.  560,  55  N.  W,   747;   Pence  v.  Ar- 
buckle,  22  Minn.  417. 


61  TIME  OF  TAKING  ACKNOWLEDGMENT.     §§  120-122 

and  delivery  of  the  deeds,  unless  rights  of  other  persons 
have  intervened.^ 

§  120.  Married  Woman's  Acknowledgment  Relates  Back, 
"When. — When  there  is  a  defective  acknowledgment  and 
certificate  of  a  wife's  conveyance,  a  subsequent  proper 
acknowledgment,  in  the  absence  of  intervening  rights, 
will  relate  back  to  the  first  acknowledgment  and  deliv- 
ery.® It  has  also  been  held  that  the  acknowledgment 
of  a  married  w' oman  of  a  deed  previously  signed,  though 
not  previously  acknowledged,  relates  back  to  the  time 
of  the  delivery.'' 

§  121.  Husband  and  Wife  may  Acknowledge  Deeds  at  Dif- 
ferent Times. — It  is  not  essential  that  husband  and  wife 
acknowledge  the  deed  at  the  same  time  or  before  the 
same  officer.^  But  the  husband  must  join  therein  dur- 
ing her  lifetime,  or  it  would  be  void.^  The  wife,  how- 
ever, may  acknowledge  deed  after  the  death  of  hus- 
band;^® and  it  is  held  that  it  would  relate  back  to  the 
previous  signing.** 

§  122.  On  Sunday  or  Legal  Holiday.— It  seems  that  an 
acknowledgment  taken  on  Sunday  or  other  legal  holi- 
day is  valid.** 

5  1  Cyc.  560. 

6  Halbert  v.  Hendrix  (Tex.  Civ.  App.),  26  S.  W.  912;  Halbert  v. 
Bennett  (Tex.  Civ.  App.),  26  S.  W.  913. 

7  Chester  v.  Ereitling  (Tex.  Civ.  App.),  30  S.  W.  465  (reversed  on 
another  point  in  88  Tex.  586,  32  S.  W.  527);  and  see  Starnes  v. 
Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W.  203. 

8  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  913;  Halbert  v. 
Hendrix   (Tex.  Civ.  App.),  26  S.  W.  911. 

9  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  913;  Halbert  v. 
Hendrix  (Tex.  Civ.  App.),  26  S.  W.  911;  post,  §  996. 

10  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 

n   Chester  v.  Breitling  (Tex.  Civ.  App.),  30  S.  W.  465;  post,  §  925. 
12  Post,   §    128. 


§  123  TIME  OF  TAKING  ACKNOWLEDGMENT,  62 

§  123.  Acknowledgment  Invalid  at  Time  Made. — An  ac- 
knowledgment invalid  at  the  time  it  is  made  is  not 
aided  by  a  eliange  in  the  law  adopting  the  form  or  mode 
nsed  previously. ^^ 

13   Texas  Land  Co.  v.  Williams,  51   Tex.  51. 


63  CERTIFICATE  OF  ACKNOWLEDGMENT. 


CHAPTER  YII. 

CERTIFICATE  OF  ACKNOWLEDGMENT. 
A.     CERTIFICATE    GENERALLY. 

§  124.     Place  of  certificate. 

§  125.     Langnage. 
|§  126-127.     Time  of  making  certificate. 

§  128.     On   Sunday  or  legal  holiday  valid. 

§  129.     Adopting   form   invalid   at    time   used. 

§  130.     Venue. 

§  131.  .  Date. 

§  132.     Signature. 

§  133.     Official    character. 

§  134.  Certificate  not   showing  official   character   aided  by 

record. 

§  135.  Not  shown  by  reference  to  record,  but  by  reference 

to   deed. 

§  135a.  Official  character  cannot  be  shown  by  extrinsic  evi- 

dence. 

§  136.  Official  character  shown  by  initials  and  caption  of 

certificate  and  by  seal. 


B.     MUST  CERTIFY  WHAT. 

|§  137-138.  Generally. 

§  139.  Grantor  known  or  proved  to  officer. 

§  140.  Known   by    introduction    sufficient. 

§  141.  Omission  of  "known  to  me"  fatal. 

§§  142-145.  Acquaintance   sufficiently   shown. 

§  146.  "Proved  to  me  on  oath  of"  surplusage. 

§  147.  Identity    of    grantor    and    person    acknowledging    deed 
must    appear. 

§  148.  Omission    of    grantor's    name. 

§  149.  Variance  in  names. 

§  150.  Parol    evidence   to    show   identity. 

§  151.  Variance  immaterial  when. 

§  152.  Middle    initial    immaterial. 

§  153.  Omission  of  "to  be  the  person,"  etc. 

§  154.  Acknowledged  execution  to  officer. 

§  155.  Casual  admission  in  officer's  presence  insufficient. 

§  156.  Sufficiently  shown. 


CERTIFICATE  OF  ACKNOWLEDGMENT.  64 


C.     IRREGULAR  CERTIFICATION. 

§§  157-160.  Sufficient   certification,   though   irregular. 

§  161.  Clerical  errors  not  fatal. 

§  162.  "The"    instead    of   "they." 

§  163.  "Contract"  for  "retract"  and  other  mistakes. 

§  164.  Insufficient   certification — "The  within  instrument   duly- 
proved"    insufficient. 

§  165.  "He"  for  "they"   defective. 

§   166.  Omission  of  "they"  fatal. 

§   167.  Surplusage. 

§  168.  Unnecessary    words. 

§  169.  Uncanceled  words  in  printed  certificate. 

§  170.  Name   out   of  place. 

§§  171-173.  Errors  and  omissions. 

D.     PAROL   EVIDENCE. 

§  174.  To  aid  certificate  not  admissible,  when. 

§  176.  Admissible,    when. 

§§  177-179.  To   correct   imperfect   certificate   of   valid   acknowl- 

edgment. 

§   180.  Limitation. 

§  181.  Where    acknowledgment    itself    is   defective,   parol 

evidence  inadmissible. 

§  182.  Parol   evidence — Inadmissible,   when. 

§   183.  Want  of  capacity  in  officer  cannot  be  shown. 

§  184,  Parol    evidence    to    impeach    certificate    admissible, 

when — May   show   no   acknowledgment   made. 

§  185.  Where  purchaser  is  chargeable    with  notice,   etc. 

§§  186-187.  Burden   of  proof— Where   seeking  to   defeat  certifi- 

cate. •■ 

§  188.  Burden  of  proof  in   case  of  equitable  titles. 

§  189.  Burden  of  proof  in  case  of  legal  titles. 

§  190.  Secondary  evidence   admissible  when. 

§  191.  Amendment  of  certificate — By  officer. 

E.     CERTIFICATE  AS  EVIDENCE. 

§§  194—195.  Not   evidence   of   execution   of   deed. 

§   196.  Admissible   to   prove   protest. 

§  197.  Validates  the  deed. 

§  198.  Protocols  and  copies  admissible  on  certificate,  when. 

§  199.  Copies  of  archives  admissible. 

§  200.  Copies   from   foreign   jurisdictions. 

§  201.  After  act  of  December  20,  1836,  proof  of  execution 
required. 


65  OF   SINGLE   PEESONS. 

§§  202-203.  Copies    filed    prior    to    February,    1837,    admissible 

when. 

§  204.  Copy   of   deed   not   properly   acknowledged   not   ad- 

missible as  ancient  instrument. 

§  205.  Certificate    of    acknowledgment    proven    by    second- 

ary  evidence. 

F.     CEETIFICATE  OF  MAGISTEACY  AND  CONFOKMITY. 

§  206.  Generally. 

§  207.  Eequired  in   Texas,  when. 

§  208.  Eemained  in  force  how  long. 

§  209.  Not    required    thereafter. 

G.     CEETIFICATE  MUST  BE  IN  COMPLIANCE  WITH  LAWS  OF 

TEXAS. 

§  210.  Foreign    officer    must    be    authorized    by    laws    of 

Texas. 

H.     CONCLUSIVENESS    OF   CEETIFICATE    OF   ACKNOWLEDG- 
MENT. 

§  211.  Conclusive    when. 

§  212.  Conclusive  as  to  capacity  of  officer,  etc. 

§  213.  Not  where  grantor  never  attempted  to  acknowledge 

it. 
§  214.  Nor   unless    grantee    is    an    innocent   purchaser    for 

value. 
§  215.  Presumptions. 

L     CEETIFICATE    AS    NOTICE. 
§  216,  Notice. 

J.     FOEM   AND   EEQUIEEMENTS   OF   CEETIFICATE. 

§  217.  Must  comply  with  law  in  force  at  time  certificate 

is   made. 
§  218.  A  substantial  compliance  with  statute  is  all  that  is 

required. 

K.     FOEM    AND    EEQUIEEMENTS    UNDEE    THE    DIFFEEENT 

STATUTES. 

§  219.     Prior  to   act   of   December,   1836. 
§  220.     Act  of  December  20,  1836. 
§  221.  Certificate    required   when. 

§  222.  Certificates   by   county   clerks   required   when. 

§  223,  Acknowledgment   of  signature  of  officer  sufficient. 

5 


§§  124, 125     CERTIFICATE  OF  ACKNOWLEDGMENT.  66 

§  224.  Proof  of  signature  of  single  witness  sufficient. 

§  225.  No  seal  necessary,  when. 

§  226.  When  grantor  is  known  to  officer,  it  is  not  necessary  to 

be  certified. 
§  227.     Act    of   January   19,    1839. 
§  228.     Act    of    February    5,    1840. 
§  229.     Act  of  February  5,  1841. 
§  230.     Act   of  May  8,   1846. 
§  232.     Act  of  May  12,  1846. 
§  233.     The  acts  of  April   6,   1861,  'January  14,  1862,  November   13, 

1866,   and  May  6,   1871. 
§  234.     Act   of   March   6,   1863. 
§  235.     Acts  of  November  13,  1866,  August  8,  1870,  August  13,  1870, 

and   May    6,    1871. 
§  236.     Constitution  of  1875— Errors. 
§  237.     Eevised   Statutes   of   1879   and   1895— Identity. 


A.     CERTIFICATE  GENERALLY. 

§  124.  Place  of  Certificate. — The  certificate  should  be 
written  or  printed  on  the  deed,  but  in  this  state  it  is 
held  that  a  certificate  written  on  another  piece  of  paper 
and  pasted  on  the  deed  is  sufficient.^  Also  is  a  certifi- 
cate in  the  body  of  the  instrument  valid  in  this  state.^ 
A  contract  for  a  mechanic's  lien  and  note  for  price 
when  both  are  written  on  the  same  piece  of  paper  need 
not  be  separately  acknowledged,  but  an  acknowledg- 
ment at  the  end  of  the  paper  "of  the  foregoing  instru- 
ment" is  sufficient.^ 

§  125.  Language. — ^The  certificate  should  be  in  the 
English  language  or  translated  by  one  who  is  familiar 
with  both.*  Prior  to  December  20,  1836,  the  instru- 
ment, to  be  authentic,  must  be  in  the  Spanish  language.^ 

1  Schramm    v.    Gentry,    63    Tex.    583;    Beaumont    Pasture    Co.    v. 
Preston,  65  Tex.  457. 

2  Brownson   v.   Scanlan,   59   Tex.   222;    Snowden   v.   Rush,   69   Tex. 
593,  6  S.  W.  767. 

3  Bosley  v.  Pease  (Tex.  Civ.  App.),  22  S.  W.  516. 

4  Sartor  v.  Bolinger,  59  Tex.  411. 

5  Ante,  §  3    (b). 


67  OF  SINGLE  PERSONS.  §§   126-128 

§  126.  Time  of  Making  Certificate. — A  certificate  of  ac- 
knowledgment made  many  years  after  the  acknowledg- 
ment is  taken  is  held  to  be  valid.® 

§  127.  Idem. — It  was  held  that  if  the  ofacer  taking 
the  acknowledgment  of  a  married  woman  is  still  in  of- 
fice, he  may  amend  his  certificate  by  attaching  his  seal, 
provided  she  has  not  in  the  meantime  withdrawn  her 
acknowledgment,  but  under  no  other  circumstances.'^ 
This  doctrine  was  disapproved  of  in  a  later  case  by  the 
court  of  civil  appeals,  but  again  approved  by  the  su- 
preme court  in  the  same  case  on  writ  of  error ;  the  ques- 
tion, however,  was  not  involved  in  the  decision  of  the 
case.®  It  is  not  necessary  that  the  certificates  of  ac- 
knowledgment be  made  at  the  same  time  or  by  the  same 
officer;  the  wife  may  acknowledge  it  years  later,*^  even 
after  the  death  of  her  husband.^^ 

§  128.  On  Sunday  or  Legal  Holiday  Valid. — It  seems 
that  an  acknowledgment  and  certificate  made  on  Sun- 
day or  a  legal  holiday  are  valid.^^  The  provision,*^ 
that  all  public  affairs  of  the  state  may  be  closed  on  a 
legal  holiday  is  not  mandatory,  and  an  indictment  on  a 
legal  holiday  is  not  invalid  on  that  account.^^  There 
is  no  law  which  makes  a  contract  void  or  even  voidable 
merely  because  made  on  Sunday,  when  the  contract  is 
in  regard  to  a  matter  not  made  unlawful  by  statute.  At 
common  law,  as  to  contracts,  no  distinction  is  made  be- 

6  Stevens  v.  Martin,  18  Pa.  St.  101;   Grant  v.  Olliver,  91  Cal.  158, 
27  Pac.  596,  861. 

7  McKeller  v.  Peck,  39  Tex.   388. 

8  Stone  V.  Sledge  (Tex.  Civ.  App.),  24  S.  W.  697,  26  S.  W.  1069. 
S  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  912. 

10  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527.     And  see  chapter 
28. 

11  Lucas  v.   Larkin,   85   Tenn.   355,   3   S.   W.   647;   Tracy   v.  Jenks, 
15  Pick.   (Mass.)   465. 

12  Texas  Revised   Statutes. 

13  Webb  V.  State  (Tex.  Cr.  App.),  40  S.  W.  989. 


§§  129,  130     CERTIFICATE  OF  ACKNOWLEDGMENT.  68 

tween  Simday  and  any  other  day.**     A  sale  of  real  es- 
tate under  execution  may  be  made  on  a  legal  holiday.*'"* 

§  129.  Adopting  Form  Invalid  at  Time  Used. — If  a  cer- 
tificate is  invalid  at  the  time  it  is  made,  a  subsequent 
law  adopting  the  form  used  does  not  cure  it.**^ 

§  130.  Venue — While  it  is  held  in  other  states  that 
the  certificate  must  show  where  the  acknowledgment 
was  made,*'''  in  Texas  the  presumption  is  that  all  offi- 
cial acts  have  been  performed  within  the  limits  of  the 
officer's  jurisdiction;  and  statement  of  the  venue  at  the 
beginning  of  the  certificate  is  sufficient,  although  the 
officer  does  not  otherwise  show  in  what  county  he  acted 
and  was  authorized  to  act.**  In  case  of  a  conflict  in 
the  statement  of  the  venue  in  the  caption  with  the  state- 
ment under  the  signature  and  seal  stating  some  other 
county,  the  latter  statements  prevail.*^  It  is  also  held 
that  the  notarial  seal  may  supply  the  omission  of  the 
certificate  to  state  the  venue. ^**  And  a  certificate  be- 
ginning, "State  of  Texas,  County  of  Hopkins,"  but  clos- 
ing as  follows:  "Witness  my  hand  and  official  seal  at 
Douglas,  6th  day  of  Oct.,  1854.  John  B.  Olute,  Notary 
Public,  N.  C,"  is  not  invalid  on  account  of  variance  of 
venue  stated.^*  If  the  certificate  appears  regular  on 
its  face  and  from  the  instrument  attached,  parol  evi- 
dence is  inadmissible  to  show  that  the  officer  was  act- 

14  Markle  v.  Scott,  2  App.  Civ.  Cas.  674;  Schneider  v.  Sansom,  62 
Tex.  201,  50  Am.  Eep.  521. 

15  Crabtree  v.  Whiteselle,  65  Tex.   111. 

16  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

17  McMahan  v.  McGraw,  26  Wis.  614. 

18  Chamberlain  v.  Pybus,  81  Tex.  511,  17  S.  W.  50;  Alexander  v, 
Houghton,  86  Tex.  702,  26  S.  W.  937. 

It)  Alexander  v.  Houghton,  86  Tex.  702,  26  S.  W.  937. 

20  Stephens  v.  Motl,  81  Tex.  115,  16  S.  W.  731. 

21  Blythe  v.  Houston,  46  Tex.  67;  First  Nat.  Bank  v.  Hicks,  24 
Tex.  Civ.  App.  269,  59   S.  W.   842. 


69  OF  SINGLE  PERSONS.  §§   131-133 

ing  without  the  sphere  of  his  duty,  or  without  his  juris- 
diction, or  witliin  tlie  wrong  county.^^ 

§  131.  Date. — The  omission  of  the  date  in  the  certifi- 
cate is  not  fatal.^^  The  presumption  is  that  the  ac- 
Lnowledgment  was  taken  some  time  between  tlie  date 
of  the  deed  and  its  record.^'*  Mistake  of  the  year  in  the 
certificate  is  not  serious  where  it  is  corrected  by  the 
statement  that  the  acknowledgment  is  of  the  above 
deed.^^ 

§  132.  Signature. — ^The  signature  of  the  officer  is 
necessary  to  the  validity  of  the  certificate."** 

§  133.  Official  Character.— Official  character  of  the  offi- 
cer who  makes  the  certificate  should  be  shown  in  it, 
either  in  the  body  or  appended  to  the  signature,  so  that 
the  recorder  may  know  without  extrinsic  evidence  that 
the  statute  is  complied  wdth,  otherwise  it  is  not  entitled 
to  registration.^'''  Where  the  certificate  does  not  show 
the  official  character  of  the  officer,  and  the  caption  of 
the  deed  shows  the  county,  and  the  certificate  of  ac- 
knowledgment bears  the  seal  of  the  county  court  and  is 
signed  by  one  styling  himself  "recorder,"  it  is  suffi- 
ciently shown  that  the  deed  was  acknowledged  before 
the  county  clerk,  who  was  also  by  law  the  county  re- 

22  Peterson  v.  Lowry,  48  Tex.  412;  Henke  v.  Stacy,  25  Tex.  Civ. 
App.  272,  61  S.  W.  511;  Livingston  v.  Kettelle,  41  Am.  Dec.  171.  See 
26  Am.  Rep.  310,  note.     For  law  prior  to  1836,  see  ante,  §  3    (e). 

23  Webb  V.  Huff,  61  Tex.  678. 

24  Sloan  V.  Thompson,  4  Tex.  Civ.  App.  426,  23  S.  W.  613. 

25  Attaway  v.  Carter,  1  U.  C.  77;  Livingston  v.  Kettelle,  41  Am. 
Dec.  173.     For  laws  prior  to  December  20,  1836,  see  ante,  §  3   (e). 

26  1  Am.  &  Eng.  Ency.  of  Law,  new  ed.,  529.  For  law  prior  to 
1836,  see  ante,  §  3  (e).  See  Livingston  v.  Kettelle,  41  Am.  Dec. 
173.  For  signature  by  making  his  mark,  see  Boehl  v.  Hecker,  1 
App.  Civ.  Cas.  761.     For  signature  of  grantor,  see  ante,  §  63. 

27  Coffee  V.  Hendricks,  66  Tex.  678,  2  S.  W.  47;  Whitehead  v. 
Foley,  28  Tex.  272;  Titus  v.  Johnson,  50  Tex.  224. 


§§  134-135a     CERTIFICATE  OF  ACKNOWLEDGMENT.  70 

corder.^**  It  is  held  that  the  fact,  appearing  by  the  cer- 
tificate of  the  clerk,  that  the  court  had  a  clerk  and  seal, 
was  sufficient  evidence  that  it  was  a  court  of  record.^ 

§  134.  Certificate  not  Showing  Official  Character  Aided  by 
Record. — A  deed  was  recorded  in  Liberty  county  on  proof 
by  affidavit  of  one  of  four  subscribing  witnesses  in  1838 
before  "Geo.  W.  Miles,  R.  L.  C."  Following  the  affi- 
davit was  a  certificate  of  the  record  of  the  deed  on  May 
4,  1838,  with  the  caption  "Republic  of  Texas,  Liberty 
County,"  also  subscribed  "Geo.  W.  Miles,  R.  L.  C." 
Under  these  circumstances  it  was  held  that  it  appears 
with  reasonable  certainty  from  the  certificates  attached 
to  the  deed  that  it  was  proved  before  the  county  clerk 
of  Liberty  county,  where  the  record  was  made.^^ 

§  135.  Not  Shown  by  Reference  to  Record,  but  by  Refer- 
ence to  Deed — But  in  a  later  case  it  is  held,  with  more 
reason  it  seems,  that  the  failure  of  the  certificate  to 
show  official  character  may  not  be  aided  by  reference  to 
the  certificate  of  its  record,  although  it  might  be  aided 
by  reference  to  the  deed.^-"^  It  is  also  presumed  in  some 
instances  from  record  of  deed.^^ 

§  135a.  Official  Character  cannot  be  Shown  by  Extrinsic 
Evidence. — Since  our  registration  acts  have  been  in  force, 
extrinsic  evidence  is  not  admissible  to  show  official 
character. ^^  But  under  the  Spanish  law  official  char- 
acter might  be  shown  by  parol  evidence.^'* 

28  Broussard  v.  Dull,  3  Tex.  Civ.  App.  59,  21  S.  W.  937. 

29  Post,  §§  533,  534. 

30  McDonald  v.  Morgan,   27   Tex.  503. 

31  Gulf  Coast  etc.  E.  E.  v.  Carter,  5  Tex.  Civ.  App.  675,  24  S.  W. 
1083  5  Cofeee  v.  Hendricks,  66  Tex.  678,  2  S.  W.  47. 

32  See  post,  §  490. 

33  Whitehead   v.  Foley,   28   Tex.'  272;    Stone  v.   Sledge    (Tex.   Civ, 
App.),  24  S.  W.  697;  Looney  v.  Adamson,  48  Tex.  619. 

34  Sayles'  Early  Laws,  art.  128,   §   11. 


71  OF  SINGLE  PERSONS.  §§   136-138 

§  136.  OflScial  Character  Shown  by  Initials  and  Caption  of 
Certificate  and  by  Seal. — Where  the  county  is  stated  in  the 
caption  and  initials  of  a  different  county  are  appended 
to  the  signature,  the  certificate  is  not  invalid  on  that 
account."^ 

B.     MUST    CERTIFY   WHAT. 

§  137.  Generally.^^ — The  certificate  must  state  all  that 
is  necessary  to  show  a  valid  acknowledgment.  It  seems 
that  the  essentials  to  be  stated  are : 

1.  That  the  grantor,  naming  him,  was  known  to  the 
oflQcer,  or  proved  to  be  the  grantor  or  person  who  ex- 
ecuted the  instrument,  on  the  oath  of  a  witness.^'' 

2.  That  the  grantor  acknowledged  to  the  officer  the 
execution  of  the  instrument.^* 

3.  The  official  character  of  the  officer  must  be  shown 
in  the  certificate,  or  appended  to  his  signature,  or  shown 
by  the  seal,  but  they  may  be  aided  by  reference  to  the 
deed.^^ 

4.  The  official  seal  must  be  attached.'*^ 

5.  The  signature  of  the  officer  must  be  appended.** 

§  138.  Idem. — But  it  seems  that  the  omission  of  the 
venue,"*^  the  date,*^  the  words  "purposes  and  considera- 
tions,"*^ the  reference  to  the  seal,*^  and  certain  other 
words,  as  will  be  seen  under  the  head  of  "omissions," 

35  Blythe  v.  Houston,  46  Tex.  67.  Shown  by  seal,  see  chapter  13. 
For  official  character  and  authority  of  nonresident  officers,  see  chap- 
ters 18,  19. 

36  For  former  requirements,  see  post,  §§  164-179. 

37  See  post,  §§   139-146. 

38  See  post,  §  154. 

39  See  ante,  §  133. 

40  See  chapter  13. 

41  See  ante,  §  132. 

42  See  ante,  §   130. 

43  See   ante,    §    80. 

44  See  post,  §  172. 

45  See  post,  §  172. 


§§  139, 140     CEKTIFICATE  OF  ACKNOWLEDGMENT.  72 

will  not  invalidate  the  certificate.  If  the  certificate 
certifies  that  the  officer  affixed  his  seal,  the  presumption 
is  that  he  did  affix  it,  even  though  the  record  or  a  cer- 
tified copy  of  it  fails  to  show  the  characters  usually 
used  to  represent  the  seal.^ 

§  139.  Grantor  Known  or  Proved  to  Officer. — Under  the 
laws  in  force  previous  to  the  Kevised  Statutes  of  Sep- 
tember 1,  1879,  it  was  not  necessary  for  the  certificate 
of  acknowledgment  to  state  that  the  grantor  was  known 
or  proved  to  the  officer,^''  but  only  required  the  officer 
to  attach  to  his  certificate  certain  proof  of  identity  in 
case  the  one  making  the  acknowledgment  was  not 
known  to  him,"*^  and  where  no  proof  was  attached,  the 
presumption  would  be  that  the  grantor  was  known  to 
the  officer.^^  The  acknowledgment  is  all  that  is  neces- 
sary, whether  the  grantor  is  known  or  not.^^  But  since 
the  taking  effect  of  the  Kevised  Statutes  of  September 
1,  1879,  the  certificate  must  show  that  the  grantor  was 
known  to  the  officer,  or  that  the  proof  of  that  fact  was 
made.^* 

§  140.  Known  by  Introduction  Sufficient. — A  certificate 
reciting  that  the  officer  knew  the  grantor  by  introduc- 
tion (by  the  grantee)  does  not  invalidate  the  acknowl- 

46  Coffey  V.  Hendricks,  66  Tex.  677,  2  S.  W.  47;  Witt  v.  Harlam, 
66  Tex.  41,  2  S.  W.  41;  Ballard  v.  Perry,  28  Tex.  347. 

47  Harvey  v.  Hill,  7  Tex.  593;  Watkins  v.  Hall,  57  Tex.  4;  Sowera 
V.  Peterson,  59  Tex.  219,  220. 

48  Slack  V.  Dawes,  3  Tex.  Civ.  App.  520,  22  S.  W.  1053;  Hill  v. 
Smith,  6  Tex.  Civ.  App.  312,  25  S.  W.  1080. 

49  Driscoll  V.  Morris,  2  Tex.  Civ.  App.  603,  21  S.  W.  629. 

50  Sowers    v.    Peterson,    59    Tex.    218. 

51  Davidson  v.  Wallingsford,  88  Tex.  623,  32  S.  W.  1030;  McKie 
v.  Anderson,  78  Tex.  207,  14  S.  W.  576;  Johnson  v.  Thompson  (Tex. 
Civ.  App.),  50  S.  W.  1057;  Sloan  v.  Thompson,  4  Tex.  Civ.  App.  426, 
23  S.  W.  613;  Watkins  v.  Hall,  57  Tex.  1;  Hines  v.  Lumpkin,  19  Tex. 
Civ.  App.  556,  47  S.  W.  818;  Hurst  v.  Pinley,  22  Tex.  Civ.  App.  605, 
55  S.  W.  388. 


73  OF  SINGLE  PERSONS.  §§   141, 142 

edgment.^^  The  law  does  not  prescribe  the  extent  of 
the  acquaintance  which  is  necessary  to  justify  the  of- 
ficer in  certifying  that  the  person  who  presents  himself 
is  known  to  the  officer  to  be  the  person  who  signed  the 
instrument  in  question,  but  that  question  is,  and  neces- 
sarily must  be,  submitted  to  the  decision  of  the  officer 
under  the  facts  as  they  exist  at  the  time  the  act  is  done. 
When  the  officer  certifies  that  the  grantor  was  known 
to  him,  it  will  be  taken  as  sufficient  unless  the  certifi- 
cate shows  on  its  face  the  fact  that  the  grantor  was  un- 
known. And  the  words  "by  introduction"  may  be  taken 
as  surplusage.  But  the  court  does  not  hold  that  an  in- 
troduction is  sufficients^  The  certificate  must  show 
that  the  grantor  was  known  or  "made  known"  to  the 
officer.^-* 

§  141.  Omission  of  "Known  to  Me"  Fatal. — The  omis- 
sion of  "known  to  me"  (since  Kevised  Statutes  of 
1879)  is  fatal  to  the  certificate,  unless  "proved  to  me  on 
oath  of —  shows  the  required  fact,"^^  but  the  cer- 
tificate need  not  be  in  the  exact  words  of  the  statute. ^^ 

§  142.  Acquaintance  Sufficiently  Shown. — A  certificate 
reciting  that  "personally  appeared  J.  T.  Bates,  Tax 
Collector  of  said  county,  to  me  well  known,  and  ac- 
knowledged," etc.,  the  deed  being  signed  "J.  T.  Bates, 
Tax  Collector  of  Concho  County,"  was  a  substantial 

52  Lindley  v.  Lindley,  92  Tex.  446,  49  S.  W.  573,  (Tex.  Civ.  App.) 
50  S.  W.  159. 

53  Lindley  v.  Lindley  (Tex.  Civ.  App.),  50  S.  W.  159,  which  is 
the  same  case  certified  to  the  supreme  court. 

54  Hurst  V.  Finley,  22  Tex.  Civ.  App.  605,  55  S.  W.  388;  Rork  v. 
Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032. 

55  McKie  V.  Anderson,  78  Tex.  210,  14  S.  W.  576;  Salmon  v. 
Huff,  80  Tex.  133,  15  S.  W.  257,  1047;  Frost  v.  Erath  Cattle  Co.,  81 
Tex.  510,  26  Am.  St.  Rep.  831,  17  S.  W.  52. 

56  Beitel  v.  Wagner,  11  Tex.  Civ.  App.  365,  32  S.  W.  367. 


§§  143-146        CEETIFICATE  OF  ACKNOWLEDGMENT.  74 

compliance  with  the  statute,^"''  it  being  implied  that  he 
was  known  to  be  the  person  who  executed  the  deed.®* 

§  143.  Idem. — The  certificate  of  acknowledgment  to 
a  deed  executed  by  agents  stating  that  they,  naming 
them,  "were  personally  known  to  him,  and  that  each  of 
them  had  acknowledged  the  execution  of  the  deed  as 
agents,"  and  being  otherwise  sufl&cient,  is  valid.®^ 

§  144.  Idem.— Under  the  act  of  May  12,  1846  (re- 
maining in  force  until  1879),  the  certificate  of  the  of- 
ficer stated  that  the  grantor  had  been  made  known  to 
him,  but  failed  to  indorse  on  the  deed,  as  he  should 
have  done,  the  proof  by  which  he  was  made  known  to 
him,  is  nevertheless  valid.^^ 

§  145.  Idem. — A  certificate  which  certified  "that  the 
grantor  was  personally  known  to  me  (the  officer),  and 
that  he  declared  to  me  that  he  had  executed  the  deed,'* 
is  a  substantial  compliance  with  the  statute  requiring 
the  officer  to  know  or  have  satisfactory  proof  on  oath 
of  a  credible  witness  that  the  person  making  the  ac- 
knowledgment is  the  individual  w^ho  executed  the 
deed.®^ 

§  146.  "Proved  to  Me  on  Oath  of"  Surplusage. — The 
words  in  brackets  in  article  4620  of  the  Revised  Statutes 

of  1895,  "proved  to  me  on  oath  of ,"  with  the 

line  drawn  in  blank  space  for  the  name  of  witness,  were 
not  intended  to  be  used,  and  may  be  treated  as  surplus- 
age. 


62 


57  Kev.  Stats.  1879,  art.  4309. 

58  ScMeicher  v.   Gatlin,   85   Tex.   273,   20   S.  W.   120. 

59  Little  V.  Weatherford,  63  Tex.  639. 

60  Sowers  v.  Peterson,  59  Tex.  217. 

61  Schramm  v.  Gentry,  63  Tex.  583;  First  Nat.  Bank  v.  Hicks,  24 
Tex.  Civ.  App.  269,  59  S.  W.  842. 

62  Farrell  v.  Palestine  Loan  Co.   (Tex.   Civ.  App.),  30  S.  W.   815; 
Adams  v.  Pardue  (Tex.  Civ.  App.),  36  S.  W.  1017;  Gray  v.  Kaufman, 


75  OF  SINGLE  PEESONS.  §§   147-150 

§  147.  Identity  of  Grantor  and  Person  Acknowledging 
Deed  Must  Appear. — Their  identity  must  appear  with  rea- 
sonable certainty  from  the  certificate  and  the  deed. 
Identity  of  names  is  ordinarily  sufficient  proof  of 
identity  of  persons.^ 

§  148.  Omission  of  Grantor's  Name. — It  has  generally 
been  held  that  the  omission  of  the  name  of  the  grantor 
from  the  certificate  or  a  mistake  in  the  name  in  the  cer- 
tificate will  not  invalidate  the  certificate  of  acknowl- 
edgment, if  it  appears  with  reasonable  certainty  from 
the  certificate  and  deed  that  the  grantor  in  fact  ac- 
knowledged it,  as  where  the  certificate  certifies  that  he 
was  "known  to  me  to  be  the  person  whose  name  is  sub- 
scribed to  the  foregoing  instrument,"^  but  that  rule 
seems  not  to  have  been  adopted  in  Texas. 

§  149.  Variance  in  Names. — A  deed  signed  by  "Mc- 
lOnzie''  but  purporting  to  have  been  acknowledged  by 
"McKenzie"  is  inadmissible  in  the  absence  of  proof  of 
its  execution  or  proof  by  the  proper  party,*^^  and  an 
unexplained  certificate  that  "James  Butler"  acknowl- 
edged the  deed  signed  by  "Jonas  Butler"  is  insufficient 
to  entitle  it  to  record.^^ 

§  150.  Parol  Evidence  to  Show  Identity. — It  seems  to 
be  well  established  that  parol  evidence  is  admissible  to 
aid  the  certificate  in  showing  the  identity  of  the  grantor 
and  person  acknowledging  the  deed,  as  where  parol  evi- 
dence was  admitted  to  prove  that  "James  M.  W."  was 
intended  for  "Jaspar  M.  W."^'^ 

82  Tex.  65,  17  S.  W.  513;  Talbert  v.  Dull,  70  Tex.  678,  8  S.  W.  530. 
See  post,  §  237;  ante,  §§  93,  139-146. 

63  McNeil  V.  O'Connor,  79  Tex.  229,  14  S.  W.  1058;  Smith  v. 
Gillon,  80  Tex.  125,  15  S.  W.  794;  Leland  v.  Eckert,  81  Tex.  229,  16 
S.  W.  897.     See  post,  §  237;  ante,  §§  93,  139-146. 

64  1  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  543. 

65  McKinzie  v.  Stafford,  8  Tex.  Civ,  App.  121,  27  S.  W.  790. 

66  Stephens  v.  Motl,  81  Tex.  115,  16  S.  W.  731. 

67  Cheek  v.  Herndon,  S2  Tex.  148,  17  S.  W.  763. 


§§  151-155      CERTIFICATE    OF    ACKNOWLEDGMENT.  76 

§  151.  Variance  Immaterial  When. — Where  the  deed  is 
signed  "R.  M.  Ilopkiiis''  and  the  certificate  of  acknowl- 
edgment certifies  that  ^'Richard  M.  Hopkins"  acknowl- 
edged the  same,  the  variance  is  immaterial,  or  not  such 
as  to  avoid  the  acknowledgment.®® 

§  152.  Middle  Initial  Immaterial. — Discrepancy  in  the 
middle  name  or  initials  is  immaterial.®^ 

§  153.  Omission  of  "to  be  the  Person,"  etc. — Omission 
of  the  clause  "to  be  the  person  whose  name  is  sub- 
scribed to  the  foregoing  instrument"  after  "to  me  well 
known,"  is  not  fatal  as  failing  to  identify  the  person  ac- 
knowledging the  deed  as  being  the  grantor.''^ 

§   154.     Acknowledged  Execution  to    Officer Ever   since 

the  act  of  May  12,  1846,  the  certificate  of  acknowledg- 
ment must  certify  that  the  grantor  acknowledged  the 
execution  of  the  instrument  to  the  officer ;  it  is  not  suf- 
ficient for  the  officer  to  certify" that  the  grantor  ex- 
ecuted it  for  the  purposes  and  consideration  ex- 
pressed.'^^ But  where  the  proof  is  made  by  a  subscrib- 
ing witness,  who  swears  that  "the  grantor  signed, 
sealed  and  delivered  the  foregoing  deed  for  the  pur- 
poses therein  expressed,  and  that  he  signed  it  as  a  wit- 
ness at  the  request  of  the  grantor,"  is  sufficient.''^ 

§  155.  Casual  Admission  in  Officer's  Presence  Insufficient. 
A  casual  admission  in  the  presence  of  the  notary,  by  a 
person  who  signed  an  instrument,  that  he  executed  it, 

68  Copelin  v.  Schuler  (Tex.),  6  S.  W.  670. 

69  Page  V.  Arnin,  29  Tex.  73;  McKay  v.  Speak,  8  Tex.  396.  See 
Livingston  v.  Kettelle,  41  Am.  Dec.  175. 

70  Hayes  v.  Tilson,  18  Tex.  Civ.  App.  610,  45  S.  W.  481.  See,  also, 
"Sufficient  Certification,"  post,  §   157. 

71  McDaniel  v.  Needham,  61  Tex.  272;  Heintz  v.  O'Donnell,  17 
Tex.  Civ.  App.  21,  42  S.  W.  798;  Johnson  v.  Thompson  (Tex.  Civ. 
App.),  50  S.  W.  1055. 

72  Stinnett  v.  House,  1  U.  C.  486. 


77  OF  SINGLE  PERSONS.  §§   156-158 

does  not  authorize  the  officer  to  certify  that  he  has  ac- 
knowledged it  In  order  to  call  into  exercise  the 
authority  of  the  officer  to  make  the  certificate,  the 
grantor  must  appear  before  him  for  the  purpose  of  ac- 
knowledging the  instrument,  and  his  admission  that  he 
acknowledged  it  must  be  made  with  a  view  to  give  it 
authenticity,  otherwise  the  act  of  the  officer  would  be 
a  nullity 7^ 

§  156.  Sufficiently  Shown — A  certificate  of  acknowl- 
edgment to  a  deed,  stating  that  before  the  officer  "per- 
sonally came  Wm.  M.  Campbell,  to  me  well  known,  and 
acknowledged  he  signed  and  delivered  the  foregoing 
transfer  for  the  purposes  and  considerations  there 
stated,"  while  not  in  the  terms  prescribed  by  the 
statute,  is  not  defective  for  failing  to  identify  the 
grantor  as  the  person  who  executed  the  instrument,  or 
failing  to  show  that  the  grantor  made  the  acknowledg- 
ment to  the  officer.''* 

C.     lEREGULAE  CERTIFICATION. 

§  157.  Sufficient  Certification,  Though  Irregular. — The 
following  certificate  taken  in  the  state  of  Louisiana 
was  held  to  be  valid  under  the  laws  in  force  in  1874,  or 
prior  to  1879 :  "In  testimony  whereof  the  said  parties 
hereto  sign  their  names,  together  with  me,  notary,  and 
the  undersigned  competent  witnesses,  and  I  affix  hereto 
my  official  seal  on  the  31st  day  of  March,  1874,  the  date 
and  year  above  written."''^ 

§  158.  Idem. — A  certificate  stating  that  "came  R- 
by  his  attorney,    J.,  with  whom  I  am    acquainted,  and 

73  Brcitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527.  See  Livingston 
V.  Kettellc,  41  Am.  Dec.  177,  note. 

74  Hays  V.  Tilson,  18  Tex.  Civ.  App.  610,  45  S.  W.  479. 

75  Brownson  v.  Scanlan,  59  Tex.  229;  and  see  Sjiowden  v.  Eush, 
69  Tex.  597,  6  S.  W.  767. 


§§159-162      CERTIFICATE    OF   ACKNOWLEDGMENT.  78 

acknowledged  that  he  signed,  sealed  and  delivered  the 
foregoing  instrument,"  was  not  void  for  uncertainty.'^® 

§  159.  Idem. — The  following  certificate  made  in  1874 
was  held  to  be  valid :  "State  of  Texas,  County  of  Wash- 
ington. Before  me,  John  Gray,  clerk  of  the  county 
court  in  and  for  the  county  aforesaid,  came  John  M. 
Graham  and  acknowledged  to  me  that  he  signed  over 
the  above  deed  as  therein  expressed.  Given  under  my 
hand  and  official  seal  this  7th  day  of  August,  1844.  (L. 
S.)     John  Gray,  C.  0.  W.  0."'^^ 

§  160.  Idem. — The  recitation  in  certificate  that  "this 
day  before  me,  F  G,  notary  public,  came  A  B  and  C  D, 
to  me  well  known,  and  acknowledged  that  they  signed 
the  foregoing  deed,"  etc.,  fairly  shows  that  they  ac- 
knowledged the  same  to  the  officer.''* 

§  161.  Clerical  Errors  not  Fatal. — Where  it  appears 
from  the  certificate  as  a  whole  that  the  officer  intended 
to  write  the  proj^er  word,  and  its  omission  was  a  cleri- 
cal error,  the  certificate  is  not  vitiated  by  such  error, 
such  as  "with"  instead  of  "without."''®  An  inartificial 
or  imperfect  statement  of  a  fact  required  to  be  stated 
should  not  vitiate  the  certificate.*^  Equivalent  words 
may  be  used.*^ 

§  162.  "The"  Instead  of  "They."— A  certificate  is  not 
invalidated  because  it  states  that  the  grantors  acknowl- 

76  Ferguson  v.  Eicketts  (Tex.  Civ.  App.),  55  S.  W.  975. 
7  7  Harlowe  v.  Hudgins,  84  Tex.  109,  31  Am.  St.  Rep.  21,  19  S:  W. 
364. 

78  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S.  W.  1057. 

79  Broussard  v.  Dull,  3  Tex.  Civ.  App.  59,  21  S.  W.  937. 

80  Talbert  v.  Dull,  70  Tex.  675,  8  S.  W.  530. 

81  Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  830;  Dorn  v.  Best,  15 
Tex.  62;  Wilson  v.  Simpson,  80  Tex.  279,  16  S.  W.  40;  Belcher  v. 
Weaver,  46  Tex.  293,  26  Am.  Rep.  267. 


79  OP  SINGLE  PEESONS.  §§   163-166 

edged  that  "the"  (instead  of  "they")  acknowledged  the 
deed.^2 

§  163.  "Contract"  for  "Retract,"  and  Other  Mistakes. — 
"Assigned"  instead  of  "signed,"  is  immaterial,^  also  is 
"with"  for  "without";^  also  is  ''contract"  instead  of 
"retract";*^  also  is  the  use  of  "I"  instead  of  "before 
me."^^  Discrepancy  in  the  middle  name  or  initials  is 
immaterial.*'^ 

§  164.  Insufficient  Certification — "The  Within  Instru- 
ment Duly  Proved"  Insufficient. — In  1838  the  certificate  of 
chief  justice  of  the  county  court  "that  the  within  in- 
strument was  duly  proved  before  me  the  twentieth  day 
of  February,  1838,"  is  not  suflacient  to  entitle  it  to  rec- 
ord.** 

§  165.  "He"  for  "They"  Defective. — ^Where  there  are 
several  grantors  of  both  sexes  recited  in  the  certificate, 
and  it  recites  that  "he"  acknowledged,  and  that  "he" 
executed  the  same,  etc.,  it  is  fatally  defective.*^ 

§  166.  Omission  of  "They"  Fatal — A  certificate  in  the 
following  form:  "Before  me,  the  undersigned  author- 

82  Montgomery  v.  Hornberger,  16  Tex.  Civ.  App.  28,  40  S.  W.  628. 

83  Broussard  v.  Dull,  3  Tex.  Civ.  App.  59,  21  S.  W.  937. 

84  Durst  V.  Dougherty,  81  Tex.  650,  17  S.  W.  388. 

85  Belcher  v.  Weaver,  46  Tex.  293,  26  Am.  Eep.  267. 

86  Belbaze  v.  Eatto,  69  Tex.  638,  7  S.  W.  501. 

87  Page  V.  Arnim,  29  Tex.  73;  McKay  v.  Apeak,  8  Tex.  396.  See 
post,  §§  309-312.  See,  also,  Coombes  v.  Thomas,  57  Tex.  322;  Eork 
V.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032;  Clark  v.  Groce,  16 
Tex.  Civ.  App.  453,  41  S.  W.  668;  Ferguson  v.  Eicketts  (Tex.  Civ. 
App.),  55  S.  W.  975;  Moses  v.  Dibrell,  2  Tex.  Civ.  App.  457,  21 
S.  W.  414;  Harvey  v.  Hill,  7  Tex.  593;  Hays  v.  Tilson,  18  Tex.  Civ. 
App.  610,  45  S.  W.  479. 

88  Flemming  v.  Eeed,  37  Tex.  152. 

80  Threadgill  v.  Bickerstaff,  7  Tex.  Civ.  App.  406,  26  S.  W.  741. 
See,  also,  McDaniel  v.  Needham,  61  Tex.  271;  Cavit  v.  Archer,  52 
Tex.  169;  Heintz  v.  O'Donnell,  17  Tex.  Civ.  App.  21,  42  S.  W.  798. 


§§167-169      CEKTIFICATE    OF    ACKNOWLEDGMENT.  80 

ity,  persoually  appeared  R.  and  E.,  his  wife,  Avho  are  to 

me  made  known,  and  acknowledged  that signed, 

executed  and  delivered  the  foregoing  deed,"  etc.,  fol- 
lowed by  the  wife's  acknowledgment  in  statutory  form, 
though  defective  as  to  the  husband,  because  it  fails  to 
show  that  he  signed,  executed  and  delivered  the  deed, 
is  good  as  to  the  wife,  and  entitles  the  deed  to  be  re- 
corded.®** 

§  167.  Surplusage. — Unnecessary  words  in  the  certifi- 
cate may  generally  be  treated  as  surplusage  and  re- 
jected. As  where  the  officer  signs  himself  "special 
deputy,"  the  word  "special"  may  be  treated  as  surplus- 
age.®^ 

§  168.  Unnecessary  Words. — The  unnecessary  words 
in  the  following  certificate  were  treated  as  surplusage 
and  the  certificate  held  to  be  valid,  to  wit:  "This  day 
came  and  personally  appeared  N.,  agent  and  attorney 
in  fact  for  M.  &  S.,  of  Pike  county,  to  me  well  known, 
formerly  of  the  county  of  Freestone,  to  me  personally 
known,  who  signed  the  names  of  said  M.  &  S.  as  their 
agent  and  attorney  in  fact,  and  being  by  me  duly  sworn, 
signed  and  acknowledged  the  execution  of  the  forego- 
ing deed,  and  delivered  the  same  as  their  binding  act."®^ 

§  169.  Uncanceled  Words  in  Printed  Certificate. — In  a 
certificate  made  on  a  printed  form  where    the    words 

"proven  to  me  on  oath  of  "  were  in  brackets, 

and  not  intended  to  be  used,  where  the  grantor  was 
known  to  the  officer,  a  line  had  been  drawn  through 
the  blank  space  by  the  officer,  but  he  had  not  canceled 

90  Eork  V.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032.  See, 
post,  §§  171-173. 

91  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 

92  Moses  V.  Dibrell,  2  Tex.  Civ.  App.  457,  21  S.  W.  416. 


81  OF   SIXGLE    PEESOXS.  §§  170172 

the  other  words  in  the  brackets,  they  might  be  consid- 
ered as  surplusage.®^ 

§  170.  Name  Out  of  Place. — The  insertion  of  a  name 
out  of  place  may  be  treated  as  surplusage.®* 

§  171.  Errors  and  Omissions,®^ — An  imperfect  statement 
of  a  fact  required  to  be  set  forth  in  a  certificate  of  ac- 
knowledgment will  not  vitiate  it  when  it  consists  of  the 
omission  of  a  material  word  if  the  mistake  is  apparent 
from  the  context.®^ 

§  172.  Idem. — Omission  of  both  words  "purposes 
and  consideration"  does  not  invalidate  the  certificate.®''' 
Nor  the  omission  of  "purposes."®^  Nor  is  the  omission 
of  the  date.®^*  The  presumption  is  that  the  acknowl- 
edgment was  taken  some  time  between  the  date  of  the 
deed  and  its  record.®®  Nor  the  words  "to  me  to  be  the 
person  whose  name  is  subscribed  to  the  foregoing  in- 
strument" after  the  expression  "to  me  well  known" 
had  been  used.^^  Nor  is  the  omission  of  the  words 
"to  be  the  person  whose  name  is  subscribed  to  the  fore- 
going instrument"  fatal. *^^     N'or  is  it  necessary  for  the 

03  Farrell  v.  Palestine  Loan  Assn.  (Tex.  Civ.  App.),  30  S.  W. 
815;  Adams  v.  Pardue  (Tex.  Civ.  App.),  3G  S.  W.  1017;  Gray  v. 
KauJBeman;  82  Tex.  65,  17  S.  W.  513;  Talbert  v.  Dull,  70  Tex.  678,  8 
S.  W.  530. 

94  Gray  v.  Kauffman,  82  Tex.  69,  17  S.  W.  513. 

95  Married  women,  see  post,  §§  309-312.  "Proof  of  Instruments 
for  Eecord, "   chapter   12. 

96  Talbert  v.  Dull,  70  Tex.  675,  8  S.  W.  530. 

97  Stephens  v.  Motl,  81  Tex.  119,  16  S.  W.  731;  Sowers  v.  Peter- 
son, 59  Tex.  219;  Monroe  v.  Arledge,  23  Tex.  480. 

98  Butler  v.  Brown,  77  Tex.  344,  14  S.  W.  136. 
98a  Webb  V.  Huff,  61  Tex.  678. 

99  Sloan  V.  Thompson,  4  Tex.  Civ.  App.  426,  23  S.  W.  613. 

100  Watkins  v.  Hall,  57  Tex.  3;  Sloan  v.  Thompson,  4  Tex.  Civ. 
App.  419,  23  S.  W.  613;  Hill  v.  Smith,  6  Tex.  Civ.  App.  312,  25  S.  W. 
1079.  ' 

101  Schramm  v.  Gentry,  63  Tex.  583. 

6 


§§  173,  17-i     CERTIFICATE    OF   ACKNOWLEDGMENT.  82 

certificate  to  certify  that  the  seal  is  attached. ^^^  Nor 
to  certify  that  it  was  "Given  under  my  hand  and  seal, 
etc."^*^  Omission  of  "sealed  and  delivered"  not  fatal 
if  seal  be  attached. ^^*  Nor  is  the  omission  of  the  word 
"ofiicial"  before  seal  material. -^^^^  Nor  is  the  omission 
of  the  word  "fully"  before  explained. -"^^^  The  omission 
of  "known  to  me"  in  a  certificate  previous  to  Septem- 
ber 1,  1879,  was  not  fatal;  since  that  date,  it  is.^^'' 
Failure  to  state  the  official  character  of  the  officer  is 
fatal.^*^^  The  omission  of  "her"  before  "act  and  deed" 
is  not  fatal.^^^ 

§  173.  Errors  and  Omissions  Fatal. — ^But  the  omission 
of  the  statement  that  the  "grantor  acknowledged  the 
execution  of  the  instrument"  is  fatal. -"^-^^  Also  is  the 
omission  of  "he"  in  the  clause  "and  acknowledged  to 
me  that  he  executed  the  same"  fatal.-'^-'^^  Also  is  the 
use  of  "he"  for  "they"  in  a  certificate  where  there  are 
both  sexes. **^ 

D.     PAEOL   EVIDENCE. 

§  174.  To  Aid  Certificate  not  Admissible,  When. — Prior 
to  the  adoption  of  the  Revised  Statutes  of  1879,  defec- 
tive certificates  of  acknowledgment  could  not  generally 
be  aided  by  parol  evidence,  though  the  decisions  seem  to 
be  somewhat  at  variance.  For  instance,  it  is  held  that 
parol  evidence  is  not  admissible  to  show  the  official 

102  Webb  V.  Hufle,  61  Tex.  678. 

103  Webb  V.  Huff,  61  Tex.  678;  Nichols  v.  Stewart,  15  Tex.  235. 

104  Mullens  v.  Weaver,  57  Tex.  5. 

105  Monroe  v.  Arledge,  23  Tex.  480. 

106  Monroe   v.    Arledge,   23    Tex.    480. 

107  See  ante,  §  141. 

108  See    ante,   §  136. 

109  Gray  v.  Kauffman,  82  Tex.  69,  17  S.  W.  513. 

110  Heintz  v.  O'Donnell,  17  Tex.  Civ.  App.  21,  42  S.  W.  798. 

111  Huff  V.  Webb,  64  Tex.  285. 

112  Threadgill  v.  Bickerstoff,  7  Tex.  Civ.  App.  406,  26  S.  W.   741. 
See  Livingston  v.  Kettelle,  41  Am.  Dec.   174,   176,  note. 


83  OF  SINGLE  PEESONS.  §§  176,  177 

character  of  the  officer  taking  the  acknowledgment,  it 
not  appearing  on  the  face  of  the  instrument/*^  Nor 
that  a  deed  was  voluntarily  executed  by  the  wife,  the  of- 
ficer's certificate  not  showing  that  there  had  been  a  privy 
examination  and  acknowledgment.***  Nor  are  the  ad- 
missions of  a  married  woman  admissible  to  show  a  con- 
veyance or  sale  of  her  property.**^  While  a  notary's 
testimony  was  admissible  to  cure  the  certificate  of  ac- 
knowledgment where  the  seal  had  been  omitted,  so  as  to 
validate  the  registration,  and  be  notice.**®  And  it  was 
held  that  it  was  error  to  allow  the  officer  taking  the  ac- 
knowledgment to  explain  his  mistake  or  vary  his  cer- 
tificate.**'' 

§  176.  Admissible,  When. — But  parol  evidence  was 
held  to  be  admissible  to  aid  the  certificate  by  shomng 
that  the  seal  of  the  officer  was  undesignedly  omitted.*** 
And  it  is  held  that  parol  evidence  is  admissible  to  prove 
that  the  signature  to  the  deed,  "J.  M.  W.,"  and  the 
name  in  the  certificate  of  acknowledgment,  "James  M. 
W.,"  were  the  same  persons,  and  were  intended  for 
"Jasper  M.  W."**^  An  officer  may  testify  that  he  took 
the  acknowledgment.*^^ 

§  177.-  To  Correct  Imperfect  Certificate  of  Valid  Acknowl- 
edgment.— After  the  adoption  of  the  Kevised  Statutes 

113  Stone  V.  Sledge  (Tex.  Civ,  App.),  24  S.  W.  697;  Looney  v. 
Adamson,  48   Tex.   619. 

114  See   post,    §    177. 

115  Bailey  v.  Trammel,  27  Tex.  328. 

116  King  V.   Kussell,  40  Tex.   130. 

117  McKeller  v.  Peck,  39  Tex.  382.  See,  also,  Smith  v.  Ward,  2 
Root,  378,  1  Am.  Dee.  80,  and  note;  Watson  v.  Lessee,  1  Binn.  470, 
2  Am.  Dec.  462;  Jourdan  v.  Jourdan,  9  Serg.  &  E.  268,  11  Am.  Dec. 
724. 

118  Nichols  V.  Stewart,  15  Tex.  235.  And  see  Nichols  v.  Gordan, 
25  Tex.  Supp.  112. 

119  Cheek  v.   Herndon,   82   Tex.   148,   17   S.  W.   763. 

120  Cassidy  v.  Scottish  Am.  Mort.  Co.,  27  Tex.  Civ.  App.  211,  64 
S.   W.   1031. 


§§  178-180      CEETIFICATE    OF   ACKNOWLEDGMENT.  84 

of  1879,  parol  e\idence  was  admissible  to  correct  an  im- 
perfect or  defective  certificate  of  a  valid  acknowledg- 
ment when  suit  was  brought  for  that  purpose.  ^^* 

§  178.  Idem. — The  statute  in  effect  provided  that 
when  the  acknowledgment  or  proof  of  the  execution  of 
any  instrument  in  writing  may  be  properly  made,  but 
defectively  certified,  any  party  interested  may  have  an 
action  in  the  district  court  to  obtain  a  judgment  cor- 
recting the  certificate.  And  any  person  interested  un- 
der any  instrument  in  writing  entitled  to  be  proved  for 
record  may  institute  action  in  the  district  court  against 
the  proper  parties  to  obtain  a  judgment  proving  such 
instrument.  *^^ 

§  179.  Idem — Where  an  action  is  brought  under  the 
above  statute  parol  evidence  is  admissible  to  prove  that 
there  was  a  valid  acknowledgment  for  the  purpose  of 
correcting  the  defective  certificate  of  same.  Even  a 
married  woman's  deed  properly  acknowledged,  but  de- 
fectively certified,  is  not  void,  but  may  be  corrected  by 
such  suit,  and  parol  evidence  is  admissible  to  prove 
such  valid  acknowledgment.*^^  This  act  acts  pros- 
pectively as  well  as  upon  a  pre-existing  cause;  it  cre- 
ates no  right,  but  only  a  new  remedy — a  means  of 
proof;  it  creates  no  deed  (the  acknowledgment  being 
the  essence  of  a  married  woman's  deed),  but  only  an- 
other rule  of  evidence  of  it,  or  a  method  of  establishing 
that  w^hich  already  existed,  and  is  constitutional.*^* 

§  180.  Limitation.- — Parol  evidence  is  admissible  to 
correct  a  defective  certificate  of  a  valid  acknowledg- 
ment, but  such  cause  of  action  would  be  barred  by  the 
four  year  statute  of  limitations.*^^ 

121  Post,   §§   1000-1005. 

122  Eev.  Stats.  1879,  nrts.  4353-4356;  post,  §§  1053-1057. 

123  Johnson  v.   Taylor,   60  Tex.   361. 

124  Johnson  v.  Taylor,  60  Tex.  361. 

125  Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  430;  Simpson  v.  Edens, 


85  OF  SINGLE  PERSONS.  §§  181, 182 

§  181.  Where  Acknowledgment  Itself  is  Defective,  Parol 
Evidence  Inadmissible. — But  where  the  acknowledgment 
itself,  for  any  cause,  is  invalid,  parol  evidence  is  inad- 
missible to  correct  it,  as  where  the  acknowledgment  is 
invalid  because  it  is  made  before  an  officer  who  is  an 
interested  party — i.  e.,  having  stock  in  a  building  and 
loan  association  which  is  the  grantor— it  cannot  be  re- 
formed nor  corrected. ^^^  Neither  can  the  acknowledg- 
ment of  a  married  woman  taken  by  the  husband  of  the 
grantor  be  cured  by  such  action.*^'' 

§  182.  Parol  Evidence — Inadmissible,  When. — Where 
the  certificate  appears  regular  on  its  face,  parol  evi- 
dence is  inadmissible  to  impeach  it  for  fraud,  imposi- 
tion or  mistake,  unless  the  vendee  had  notice  of  the 
fraud,  imposition  or  mistake,  or  was  not  a  purchaser 
for  value.  Before  such  certificate  can  be  impeached, 
it  must  be  shown  that  the  grantee  had  notice  of  the 
fraud,  imposition  or  mistake,  or  that  the  circumstances 
were  such  as  should  have  impelled  him  to  inquiry  which 
he  neglected.^^^  That  is,  if  the  grantee  paid  a  valuable 
consideration.*^  The  certificate  of  acknowledgment 
is  conclusive  of  the  facts  therein  stated  where  the  con- 
duct of  the  grantee  is  in  good  faith,  and  he  pays  a  val- 
uable and  adequate  consideration  for  the  land.*'"^^  And 
a  pre-existing  deed  is  such  valuable    consideration    as 

14  Tex.  Civ.  App.  235,  38  S.  W.  476;  Starnes  v.  Beitel,  20  Tex.  Civ. 
App.  524,  50  S.  W.  202;  Silcock  v.  Baker,  25  Tex.  Civ.  App.  508,  61 
S.  W.  939. 

126  Bexar  etc.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W. 
1081,  57  S.  W.  583. 

127  Silcock  V.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939. 

128  Wiley  V.  Prince,  21  Tex.  637;  Pool  v.  Chase,  46  Tex.  207; 
Pierce  v.  Fort,  60  Tex.  464. 

129  Williams  v.  Pounds,  48  Tex.  141;  Davis  v.  Kennedy,  58  Tex. 
517;  Cole  v.  Bammel,  62  Tex.  112. 

130  Waltee  v.  Weaver,  57  Tex.  569;  Webb  v.  Burney,  70  Tex.  325, 
.7  S.  W.  841;  Davis  v.  Agnew,  67  Tex.  210,  2  S.  W.  43,  376;  Stallings 
V.  HuUum,  79  Tex.  421,  15  S.  W.  677. 


§§183,184     CEETIFICATE    OF    ACKNOWLEDGMENT.  86 

will  sustain  the  deed.^^^  The  certificate  of  acknowl- 
edgment of  a  married  woman  is  conclusive  in  the  ab- 
sence of  fraud  in  the  parties  thereto. *^^  And  the 
grantee  must  be  a  party  to  the  fraud  or  it  is  not  avail- 
able.*^^ A  grantor  claiming  that  he  was  misinformed 
that  a  deed  was  a  mortgage  by  the  interpreter,  and  not 
alleging  fraud  on  the  part  of  the  grantee,  was  concluded 
by  the  certificate  of  acknowledgment,  that  doctrine  be- 
ing well  established.*^* 

§  183.  Want  of  Capacity  in  Officer  cannot  he  Shown. — 
If  the  certificate  appears  regular  on  its  face  and  from 
the  instrument  attached,  parol  evidence  is  inadmissible 
to  show  want  of  capacity  in  the  officer  making  the  cer- 
tificate, or  that  he  was  not  acting  within  the  sphere  of 
his  duty;*^^  or  that  he  had  an  interest  in  the  land; 
or  that  he  held  at  the  time  an  incompatible  oflfice;*^*^ 
or  that  he  was  acting  without  his  jurisdiction  or  in 
the  wrong  county;*^''  or  that  the  acknowledgment  was 
not  properly  taken.*^* 

§  184.  Parol  Evidence  to  Impeach  Certificate  Admissible, 
When — May  Show  No  Acknowledgment  Made. — But  the  cer- 
tificate of  acknowledgment  does  not  preclude  a  party 

131  Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App.  263,  27  S.  W.  151; 
Webb  V.  Burney,  70  Tex.  325,   7   S.  W.  841. 

132  Hartly  v.  Frosh,  6  Tex.  208,  55  Am.  Dec.  772;  Adams  v. 
Pardue  (Tex.  Civ.  App.),  36  S.  W.  1017;  Summers  v.  Sheern  (Tex. 
Civ.  App.),  37  S.  W.  246. 

133  Shelby  v.  Burtis,  18  Tex.  645;  Henderson  v.  Terry,  62  Tex.  282. 

134  Herring  v.  White,  6  Tex.  Civ.  App.  249,  25  S.  W.  1017;  Sum- 
mers V.  Sheern  (Tex.  Civ.  App.),  37  S.  W.  246;  Gray  v.  Shelby,  83 
Tex.  407,  18  S.  W.  809;  Atkinson  v.  Bead  (Tex.  Civ.  App.),  49  S.  W. 
262. 

135  Titus  V.  Johnson,  50  Tex.  240. 

136  Coffey  V.  Hendricks,  66  Tex.  679,  2  S.  W.  47. 

137  Coffey  V.  Hendricks,  66  Tex.  679,  2  S.  W.  47;  Peterson  v. 
Lowry,  48  Tex.  412. 

138  Forbes  v.  Thomas  (Tex.  Civ.  App.),  51  S.  W.  1097;  Hurst  v. 
Finley  (Tex.  Civ.  App.),  54  S.  W.  1072, 


87  OF  SINGLE  PERSONS.  §§  185-187 

from  showing  that  no  acknowledgment  was  made  by 
him,  and  the  fact  that  he  stated  to  an  officer  that  he 
had  executed  the  deed  is  not  such  an  acknowledgment 
as  is  contemplated  by  law,  unless  he  appeared  before 
the  officer  and  acknowledged  its  execution  for  the  pur- 
poses of  giving  it  authenticity.*^^ 

§  185.  Where  Purchaser  is  Chargeable  With  Notice,  etc. 
A  married  woman's  deed  may  have  the  proper  certifi- 
cate of  acknowledgment  and  yet  be  avoided  by  her  if 
the  certificate  does  not  speak  the  truth,  or  the  deed  of 
acknowledgment  was  obtained  by  fraud  or  force,  pro- 
vided the  purchaser  is  charged  with  notice  of  these 
facts  before  the  purchase  money  is  paid."^  But  if  she 
never  appeared  before  the  officer,  or  attempted  to  ac- 
knowledge the  same,  his  false  certificate  will  be  void 
and  this  may  be  shown  by  parol  evidence,  the  officer 
having  no  more  right  to  certify  to  an  acknowledgment 
unauthorized  than  to  forge  her  name.*** 

§  186.  Burden  of  Proof — ^Where  Seeking  to  Defeat  Cer- 
tificate.— The  doctrine  is  well  established  in  this  state 
that  where  a  party  seeks  to  impeach  a  certificate  of  ac- 
knowledgment on  account  of  fraud,  mistake  or  imposi- 
tion, the  burden  of  proof  is  also  upon  him  to  show  that 
these  facts  were  known  to  the  grantee,  or  that  he  was 
not  a  purchaser  for  value. 

§  187.  Idem. — For  instance,  it  is  held  that  a  married 
woman  cannot  defeat  her  deed  by  showing  that  she  did 
not  understand  it  or  that  the  officer  did  not  properly 
explain  it  to  her,  unless  she  also  show  that  these  facts 
were  known  to  the  grantee.**^     In    another    case   the 

139  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 

140  Cole  V.  Bammel,  62  Tex.  112;  Davis  v.  Kennedy,  58  Tex.  516; 
Miller  v.  Yturria,  69  Tex.  552,  7  S.  W.  206. 

141  Wheelock  v.  Cavett,  91  Tex.  682,  66  Am.  St.  Eep.  920,  45  S.  W. 
796;  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 

142  Miller  v.  Yturria,  69  Tex.  552,  7  S.  W.  206. 


§§  188,  189      CERTIFICATE  OF  ACKNOWLEDGMENT.  88 

court  holds  that  had  there  been  evidence  sufficient  to 
show  that  grantee  had  notice  of  the  imposition  on  the 
wife  she  could  have  recovered,  thus  throwing  the  bur- 
den on  her  to  prove  the  notice  to  the  grantee. ^*^  In 
another  case  it  was  held  that  the  wife's  testimony  was 
inadmissible  to  show  imposition,  etc.,  because  it  was  not 
shown  that  the  grantor  had  notice  of  the  imposition.*** 
In  another  case  it  was  held  that  where  Mrs.  C,  as  a 
witness  for  herself,  testified  over  objection  of  appellant 
that  the  officer  who  took  the  acknowledgment  to  the 
deed  to  Henderson  told  her  at  the  time  that  it  was  a 
deed  of  trust;  that  he  had  not  read  over  the  deed  and 
explained  it  to  her.  There  was  no  pretense  that  Hen- 
derson knew  anything  of  the  statements  of  the  officer 
to  Mrs.  C,  or  that  he  was  aware  of  any  omissions  of 
duty  upon  the  part  of  the  officer  in  taking  the  acknowl- 
edgment. Under  the  case  presented  it  is  very  clear 
that  the  evidence  ought  not  to  have  been  admitted.**^ 

§  188.  Burden  of  Proof  in  Case  of  Equitable  Titles. — The 
distinction  should  also  be  borne  in  mind  between  an 
equitable  title  or  claim  and  a  legal  title.  It  is  well  es- 
tablished that  the  burden  of  proof  is  upon  the  party  as- 
serting the  prior  equitable  title  to  show  either  that  the 
owner  of  the  legal  title  knew  of  the  prior  equities  or 
that  he  did  not  pay  a  valuable  consideration  for 
same.*** 

§  189.  Burden  of  Proof  in  Case  of  Legal  Titles. — But 
where  a  junior  purchaser  of  the  legal  title  seeks  to  de- 

143  Edwards  v.  Dismukes,  53   Tex.  605. 

144  Adams  v.  Pardue  (Tex.  Civ.  App.),  36  S.  W.  1017;  Poole  v. 
Chase,  46  Tex.  207. 

145  Henderson  v.  Terry,  62  Tex.  282.  See,  also,  Pierce  v.  Fort, 
60  Tex.  471;  Waltee  v.  Weaver,  57  Tex.  569. 

146  Halbert  v.  De  Bode,  15  Tex.  Civ.  App.  615,  40  S.  W.  1011; 
Biggerstaff  v.  Murphy,  3  Tex.  Civ.  App.  363,  22  S.  W.  768;  Texas 
Loan  Agency  v.  Taylor,  88  Tex.  50,  29  S.  W.  1057;  Barnes  v.  Jamison, 
24  Tex.  365;  Peterson  v.  McCauley  (Tex.  Civ.  App.),  25  S.  W.  829; 
Hill  v.  Moore,  62  Tex.  610;  Lewis  v.  Cole,  60  Tex.  341. 


89  OF  SINGLE  PERSONS.  §§190,191 

feat  a  prior  unrecorded  legal  title  on  the  ground  of 
want  of  notice,  it  devolves  upon  the  junior  purchaser 
to  prove  that  he  was  an  innocent  purchaser  and  for 
value.  It  is  well  settled  that  one  who  seeks  to  postpone 
a  prior  title  upon  the  ground  that  he  has  acquired  a 
subsequent  title  for  value  without  notice  has  the  burden 
of  proving  both  those  facts.^*''  And  in  Rogers  v.  Pet- 
tus,  cited,  it  is  held  that  there  is  no  presumption  from 
lapse  of  time,  in  the  absence  of  proof  that  the  second 
grantee  paid  a  valuable  consideration  or  bought  with- 
out notice,  but  on  his  death  the  presumption  would  be 
that  he  bought  without  notice  of  the  prior  deed.*^^ 

§  190.  Secondary  Evidence  Admissible,  When. — Where 
the  deed  and  certificate  of  acknowledgment  are  lost  or 
destroyed,  secondary  or  parol  evidence  is  admissible  to 
show  a  copy  of  the  original  deed  or  certificate  of  ac- 
knowledgment.**® And  circumstantial  evidence  is  ad- 
missible for  such  pui'pose. 


150 


§  191.  Amendment  of  Certificate*^*— By  Officer.— The 
question  as  to  whether  or  not  an  ofiicer  who  correctly 
takes  the  acknowledgment  of  a  single  person,  but  by 

147  lilies  V.  Frerichs,  11  Tex.  Civ.  App.  575,  32  S.  W.  915;  Olcott 
V.  Ferris  (Tex.  Civ.  App.),  24  S.  W.  850;  Bremer  v.  Case,  60  Tex. 
151;  Harrison  v.  Boring,  44  Tex.  263;  Eogers  v.  Pettus,  80  Tex.  426, 
15  S.  W.  1093;  Watkins  v.  Edwards,  23  Tex.  447;  Rogers  v.  Burchard, 
34  Tex.  453,  7  Am.  Rep.  283;  Hamman  v.  Krigwin,  39  Tex.  42;  Jack- 
son V.  Waldstein,  10  Tex.  Civ.  App,  156,  30  S.  W.  47. 

148  lilies  v.  Frerichs,  11  Tex.  Civ.  App.  575,  32  S.  W.  915. 

149  Grain  v.  Huntington,  81  Tex.  614,  17  S.  W.  243;  Daniels  v. 
Cheekmore,  7  Tex.  Civ.  App.  573,  27  S.  W.  148;  Bounds  v.  Little, 
75  Tex.  316,  12  S.  W.  1109;  Blanton  v.  Ray,  66  Tex.  61,  17  S.  W. 
264;  Overand  v.  Menczer,  83  Tex.  130,  18  S.  W.  301;  Johnson  v. 
Luford,  9  Tex.  Civ.  App.  85,  29  S.  W.  57;  Newby  v.  Haltaman,  43 
Tex.  314;  Simpson  v.  Edens,  11  Tex.  Civ.  App.  235,  38  S.  W.  476. 

150  Baylor  v.  Tillback,  20  Tex.  Civ.  App.  490,  49  S.  W.  721;  Cox 
V.  Rust  (Tex.  Civ.  App.),  29  S.  W.  807;  Heintz  v.  Thayer,  92  Tex. 
658,  50  S.  W.  930. 

161   See  "Curing  Defective  Acknowledgments,"  post,  §  992,  etc. 


§§194-196      CERTIFICATE    OF   ACKNOWLEDGMENT.  90 

mistake  or  accident  fails  to  make  a  proper  certificate 
of  it,  may  at  any  time  amend  his  certificate  so  as  to 
make  it  state  the  facts  as  they  really  were,  seems  to 
have  been  settled  in  the  affirmative  in  this  state.  ^^^ 

E.     CERTIFICATE  AS  EVIDENCE. 

§  194.  Not  Evidence  of  Execution  of  Deed — While  in 
most  states  the  certificate  of  acknowledgment  is  evi- 
dence, and  in  some  states  conclusive  evidence  of  the  ac- 
knowledgment and  execution  of  the  instrument  and  ren- 
ders it  admissible  in  evidence  without  other  proof  of 
its  execution,^^^  a  different  rule  has  been  adopted  in 
Texas.  ^^^ 

§  195.  Idem.— Article  2309  of  the  Revised  Statutes 
of  1895,  which  has  been  in  force  since  June  22,  1846,^®® 
provided  that  "all  declarations  and  protests  made  and 
acknowledgments  taken  by  notaries  public,  and  certi- 
fied copies  of  their  records  and  official  papers,  shall  be 
received  as  evidence  of  the  facts  therein  stated,  in  all 
the  courts  of  this  state."  Our  courts  have  held,  even 
where  the  acknowledgment  was  taken  by  a  notary  pub- 
lic, that  the  certificate  of  acknowledgment  was  not  in- 
tended to  prove  the  execution  of  the  deed,  but  to  pre- 
pare it  for  record.*®^ 

§  196.  Admissible  to  Prove  Protest — Under  this  section 
it  was  held,  however,  that  a  notary's  certificate  of  pro- 
test was  admissible  in  evidence  to  prove  the  protest. 


167 


152  See  chapter  28. 

153  1  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  555. 

154  McFadden  v.  Preston,  54  Tex.  407;  Wiggins  v.  Fleishel,  50 
Tex.  57;  CoflPey  v.  Hendricks,  66  Tex,  677,  2  S.  W.  47. 

155  2  L.  T.  1649, 

156  McFadden  v,  Preston,  54  Tex,  407;  Wiggins  v,  Fleishel,  50 
Tex.  57;  Coffey  v,  Hendricks,  66  Tex.  677,  2  S.  W,  47,  See  Emanuel 
V.  Gates,  53  Fed.  775. 

157  Pyron  v.  Butler,  27  Tex.  271. 


91  OF  SINGLE  PEESOXS.  §§   197-199 

§   197.     Validates  the  Deed It    is    held    that    where 

grantor  requests  officer  to  certify,  as  he  did,  that  he 
signed,  executed  and  deliyered  the  deed,  this  validates 
it,  even  though  it  is  not  written  nor  signed  by  the 
grantor,  under  the  law  in  force  prior  to  ISTO.-*^^^ 

§  198.  Protocols  and  Copies  Admissible  on  Certificate, 
When. — Prior  to  the  act  of  December  20,  1836,  protocols 
and  the  copies  of  same  issued  by  the  notary  to  the  pur- 
chaser as  evidence  of  his  title,  called  testimonios,  or  sec- 
ond originals,  were  admissible  in  evidence  without  other 
proof  of  execution  than  the  officer's  certificate/^^  The 
testimonio  is  not  a  copy,  but  second  original,  and  at  the 
time  it  was  executed  it  would  have  been  evidence  of  the 
sale  without  other  proof.^^^ 

§  199.     Copies  of  Archives  Admissible After  the  act  of 

December  20,  1836,  the  rule  was  changed.  Section  33 
of  this  act  required  protocols  to  be  deposited  with  the 
county  clerk  and  made  them  public  archives,  and  cer- 
tified copies  of  them  made  by  the  county  clerk  having 
proper  custody  of  same  would  be  admissible  in  evidence, 
and  of  record,  if  the  protocol  was  authentic. *^^  But  if 
the  protocol  has  passed  into  the  hands  of  the  grantee 
he  might  have  no  doubt  proven  it  up  for  record  and  had 
it  recorded,  and  it  would  have  been  admissible  in  evi- 
dence. *^^ 

158  Newton  v.  Emerson,  66  Tex.  145,  18  S.  W.  348. 

159  McKissick  v.  Colquhoun,  18  Tex.  152;  Hall's  Mexican  Laws, 
1556;  Sayles'  Early  Laws,  arts.  25,  71,  127,  128;  Smith  v.  Townsend, 
Dall.  570. 

160  Gainer  v.  Cotton,  49  Tex.  114.     See    ante,  §  25. 

161  Hutchings  v.  Bacon,  46  Tex.  415;  McCarty  v.  Johnson,  20 
Tex.  Civ.  App.  184,  49  S.  W.  1100;  Gainer  v.  Cotton,  49  Tex.  114; 
Beaumont  Pasture  Co.  v.  Preston,  65  Tex.  456;  Wood  v.  Welder,  42 
Tex.  408.     Ante,  §  5. 

162  Gainer  v.  Cotton,  49  Tex.  114;  McKissick  v.  Colquhoun,  18 
Tex.  148.     See    ante,  §  25. 


§§200-202      CERTIFICATE    OF    ACKNOWLEDGMENT.  92 

§  200.  Copies  from  Foreign  Jurisdictions. — Where  the 
original  protocol  is  iu  the  archive  of  a  foreign  or  former 
iiovernment,  tcstimonios  thereof  are  not  admissible 
without  some  proof  of  execution  or  evidence  of  their 
genuineness,  otherwise  a  door  would  be  open  to  fraud, 
as  the  original  would  be  without  the  jurisdiction  of  our 
courts. ^*^^  A  later  case  holds  that  a  testimonio,  or  copy 
of  the  protocol  made  by  a  notary  in  the  state  of  Lou- 
isiana, duly  i)roven  was  not  admissible  in  evidence  ow 
ing  to  its  being  a  copy.*^^  But  a  certified  copy  of  a 
protocol  which  is  a  foreign  archive,  is  held  to  be  admis- 
sible.***^ 

§  201.  After  Act  of  December  20,  1836,  Proof  of  Execu- 
tion Required. — Section  37  of  said  act  of  December  20, 
1836,  required  owners  of  testimonios  and  other  evi- 
dences of  title  to  have  them  proven  and  recorded,  and 
after  this  act  was  passed  testimonios  and  other  colors  of 
title  were  not  admissible  in  evidence  without  proof  of 
execution,^®*'  and  that  want  of  proof  will  not  be  cured  by 
time.^^''  Simply  the  acknowledgment  of  his  signature 
to  the  certificate  on  the  testimonio  by  the  officer  who 
executed  the  same  before  the  county  clerk  is  sufficient 
to  admit  the  testimonio  to  record,  has  been  too  long  and 
well  established  by  this  court  for  question. ^^ 

§  202.  Copies  Filed  Prior  to  February,  1837,  Admissible 
When.— The  act  of    May  13,  1846,  taking  effect    June 

163  Word  V.  McKinney,  25  Tex.  268;  De  Leon  v.  White,  9  Tex. 
600;  Lambert  v.  Weir,  27  Tex.  364. 

164  Frost  V.  Wolf,  77  Tex.  459,  19  Am.  St.  Eep.  761,  14  S.  W.  440. 

165  Williams  v.  Conger,  49  Tex.  600.     And    ante,  §§  25,  33. 

166  Wood  V.  Welder,  42  Tex.  408. 

167  Hatchett  v.  Conner,  30  Tex.  108;  Hutcliins  v.  Bacon,  46  Tex. 
415. 

168  Gainer  v.  Cotton,  49  Tex.  114;  Edwards  v.  James,  7  Tex.  372; 
Beaty  v.  Whitaker,  23  Tex.  256;  McCarty  v.  Johnson,  20  Tex.  Civ. 
App.  184,  49  S.  W.  1100.  But  see  Frost  v.  Wolf,  77  Tex.  459,  19  Am. 
St.  Rep.  761,  14  S.  W.  440,  above  referred  to. 


93  OF  SINGLE  PEESONS.  §§  203, 204 

22(j^i6»  provided  "that  copies  of  all  conveyances  and 
other  instruments  of  writing  between  private  individ- 
uals, which  were  filed  in  the  office  of  any  alcalde  or 
judge  in  Texas,  previous  to  the  first  Monday  in  Febru- 
ary, 1837,  shall  be  admitted  as  evidence  in  like  manner 
as  the  originals;  provided  such  copies  shall  be  certified 
to  under  the  hand  and  seal  of  the  officer  with  whom  such 
conveyance  and  instrument  of  writing  are  now  depos- 
ited." 

§  203.  Idem. — Under  this  act  a  certified  copy  of  a 
sale  before  the  alcalde  of  Austin,  certified  by  the 
county  clerk  of  Austin  county,  was  held  admissible.^'^*^ 
The  instrument  must  have  been  executed  with  all  the 
forms  necessary  to  constitute  it  an  authentic  act.*''^  It 
is  not  void  because  it  wants  the  signature  of  the  officer 
if  it  is  shown  that  the  officer  wrote  the  same  in  a  book 
and  signed,  as  was  his  custom,  at  the  end  of  the  book.-'^'^^ 
Testimonios  which  were  delivered  to  the  parties  seem  to 
have  been  repudiated  by  this  act.^''^  And  it  was  held 
that  a  deed  executed  before  a  notary  in  Matamoras  in 
1828  and  filed  in  the  archives  of  Austin's  colony  in  1829 
does  not  come  within  the  provisions  of  this  act.-^"* 

§  204.  Copy  of  Deed  not  Properly  Acknowledged  not  Ad- 
missible as  Ancient  Instrument. — An  ancient  instrument 
after  thirty  years  will  be  admissible  in  evidence  with- 
out proof  of  execution  if  it  comes  from  such  custody  as 
will  not  be  suspicious,^'^  but  no  time  will  render  ad- 
missible as  an  ancient  instrument  a  certified  copy  of  a 
deed  which  was  not  properly  acknowledged.*'^^ 

169  2  L.  T.  1694. 

170  Hubert  v.  Bartlett,   9  Tex.   102. 

171  Andrews  v.  Marshall,  26  Tex.  216;  York  v.   Gregg,  9  Tex.  85. 

172  Andrews   v.   Marshall,   26    Tex.   216;    Titus   v.   Kimbro,   8   Tex. 
210. 

173  Titus   V.  Kimbro,   8   Tex.   221. 

174  Lee  V.  Wharton,   11   Tex.   74. 

175  Parker  v.  Chancellor,  73  Tex.  475,  11  S.  W.  503. 
170   Hill  V.  Taylor,  7  Tex.  295,  14  S.  W.  366. 


§§205-207      CERTITICATE   OF   ACKNOWLEDGMENT.  94 

^  205.  Certificate  of  Acknowledgment  Proven  by  Second- 
ary Evidence. — Where  the  certificate  of  acknowledgment 
and  deed  are  lost  they  may  be  established  by  parol  or 
circumstantial  evidence.^'"'' 

F.     CEETIFICATE    OF    MAGISTEACY    AND    CONFOKMITY. 

§  206.  Generally. — As  a  general  rule  certificates  of 
magistracy  and  conformity  are  not  necessary  to  the  va- 
lidity of  a  certificate  of  acknowledgment  and  proof,  un- 
less it  is  required  by  statute.^''* 

§  207.  Required  in  Texas,  When. — The  first  act  in 
Texas  requiring  certificates  of  magistracy  and  conform- 
ity was  that  of  February  5,  1841.*^'*  It  provided  that 
if  the  instrument  is  executed  abroad  it  "shall  be  ac- 
knowledged or  proved  by  two  subscribing  witnesses, 
before  any  circuit  or  supreme  judge  or  chancellor  of 
the  United  States  of  America,  certified  by  him  with  the 
certificate  of  the  chief  magistrate  of  the  United  States, 
as  to  the  official  character  of  him  taking  the  acknowl- 
edgment, or  probate;  and  the  great  seal  of  the  United 
States  thereto  annexed,  or  if  so  acknowledged  or  proven 
before  any  judge  of  a  supreme  court  of  record,  or  in 
any  such  court  of  any  other  nation  or  kingdom,  and 
certified  by  such  judge,  or  the  record  thereof  exempli- 
fied, and  either  so  counter  certified  by  the  chief  magis- 
trate or  sovereign  of  such  other  nation  or  kingdom,  un- 
der the  great  seal ;  or  by  the  consul  of  this  republic,  or 
minister  resident  there;  the  same  shall  be  admitted  to 
record,  and  shall  be  good  and  effectual,  as  aforesaid, 
from  and  after  registration." 

177  Grain  v.  Huntington,  81  Tex.  614,  17  S.  W.  243;  Clapp  v. 
Engledow,  82  Tex.  296,  18  S.  W.  146;  Baylor  v.  Tilleback,  20  Tex. 
Civ.  App.  490,  49  S.  W.  721;  Cox  v.  Eust  (Tex.  Civ.  App.),  29  S.  W. 
807;  Heintz  v.  Thayer,  92  Tex.  658,  50  S.  W.  930,  51  S.  W.  640. 

178  1   Century  Digest,   1000. 

179  2  L.  T.  631. 


95  OF  SINGLE  PEESONS.  §§   208-211 

§  208.  Remained  in  Force  How  Long. — This  act  re- 
mained in  force  until  July  13,  1846/®**  when  the  act  of 
May  12,  1846,  took,  effect.  The  certificate  of  conform- 
ity required  under  the  former  act  was  not  required  un- 
der the  latter;  such  certificate  was  not  necessary.*®^ 

§  209.  Not  Required  Thereafter — It  seems  that  no  sub- 
sequent statute  has  required  certificates  of  magistracy 
and  conformity. 

G.     CEETIFICATES   MUST   BE   IN   COMPLIANCE   WITH   LAWS 

OF   TEXAS. 

§  210.  Foreign  Officer  Must  be  Authorized  by  Laws  of 
Texas. — Unless  an  of&cer  in  a  foreign  country  is  author- 
ized to  take  acknowledgments  by  the  statutes  of  Texas, 
his  certificate  is  not  aided  by  a  certificate  showing  that 
he  was  authorized  by  the  laws  of  the  foreign  state  to 
take  the  acknowledgment.  Certificates  must  be  in  com- 
pliance with  laws  of  Texas. *®^ 

H.     CONCLUSIVENESS    OF    CEETIFICATE    OF    ACKNOWLEDG- 
MENT. 

§  211.  Conclusive  When. — If  the  grantor  appears  before 
the  ofiacer  for  the  purpose  of  acknowledging  instrument 
and  attempts  to  acknowledge  it,  and  the  offlcer  makes  a 
certificate  of  same,  and  the  grantee  without  notice  of 
any  imposition  on  the  grantor,  relying  on  the  recita- 
tions in  the  certificate,  paid  a  valuable  consideration 
for  the  property,  the  certificate  will  be  conclusive  of 
the  facts  therein  recited,  even  though  the  acknowledg- 
ment may  not  have  been  properly  taken. 


183 


180  2   L.   T.   1549. 

181  Texas  Land  Co.  v.  Williams,  51  Tex.  59;  Carpenter  v.  Dexter, 
75  U.  S.   (8  Wall.)   513,  19  L.  ed.  426. 

182  Sartor  v.  Bolinger,  59  Tex.  411;  ante,  §  68, 

183  See  post,  §§  319-324. 


§§  212-214      CEETIFICATE  OF  ACKNOWLEDGMENT.  96 

§  212,  Conclusive  as  to  Capacity  of  Officer,  etc. — It  is 
also  held  that  the  certificate  is  conclusive  as  to  the 
capacity  of  the  officer  making  the  certificate  when  the 
same  appears,  and  that  extrinsic  evidence  is  not  admis- 
sible to  show  that  the  officer  was  not  acting  within 
the  sphere  of  his  duty^®*  nor  that  he  had  an  interest  in 
the  land,  nor  that  he  held  at  the  time  an  incompatible 
office,^^^  nor  that  he  was  acting  without  his  jurisdic- 
tion, nor  in  the  wrong  county ,*^^  nor  that  the  acknowl- 
edgment was  imperfectly  taken. ^®''  Neither  should  an 
officer  taking  the  acknowledgment  be  allowed  to  explain 
his  mistake  nor  vary  his  certificate.*^*  But  such  officer 
is  a  competent  witness  to  prove  that  it  was  properly 
taken,  in  a  suit  brought  for  the  purpose  of  correcting 
the  certificate  under  articles  4353  to  4356,  inclusive,  of 
the  Revised  Statutes  of  1879.**^  Previous  to  this  act 
a  notary's  testimony  Avas  not  admissible  to  cure  the  cer- 
tificate where  the  seal  had  been  omitted,  so  as  to  vali- 
date the  registration.*^®  But  under  the  Spanish  law 
the  certificate  was  not  conclusive.*^* 

§  213.  Not  Where  the  Grantor  Never  Attempted  to  Ac- 
knowledge It — But  if  the  grantor  never  appeared  before 
the  officer  for  the  purpose  of  acknowledging  the  instru- 
ment, nor  attempted  to  acknowledge  it,  the  certificate 
would  be  void  and  could  be  impeached. *^^ 

§  214.  Nor  Unless  Grantee  is  an  Innocent  Purchaser  for 
Value — The  certificate  might  also  be  impeached  in  case 

184  Titus  V.  Johnson,  50  Tex.  240. 

185  Coffey  V.  Hendricks,  66   Tex.  679,  2  S.  W.  47. 

186  Coffey  V.  Hendricks,  66  Tex.  679,  2  S.  W.  47;  Peterson  v.  Lowry, 
48   Tex.  412. 

187  Forbes  v.  Thomas  (Tex.  Civ.  App.),  51  S.  W.  1097;  Hurst  v. 
Pinley,  22  Tex.  Civ.  App.  605,  54  S.  W.   1072. 

188  McKeller  v.  Peck,  39  Tex.  382. 

189  Norton  v.  Davis,  83  Tex.  36,  18  S.  W.  430. 

190  King  v.  Eussell,  40  Tex.  130. 

191  Sayles'  Early  Laws,  art.  128,  §§  11,  12. 

192  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 


97 


OF  SINGLE  PEESONS.  §§   215-218 


of  fraud  or  imposition  on  the  grantor,  if  it  were  known 
to  the  grantee,  or  if  he  did  not  pay  a  valuable  consider- 
ation.^^^ 

§  215.  Presumptions. — Where  the  certificate  of  ac- 
knowledgment attached  to  an  instrument  fails  to  com- 
ply with  the  law,  in  that  it  omits  to  state  that  the 
grantor  acknowledged  the  deed,  lapse  of  time  cannot 
raise  the  presumption  of  acknowledgment,  so  as  to  ren- 
der the  record  of  the  deed  legal.^*** 

L     CEETIFICATE     AS    NOTICE. 

§  216.  Notice. — The  certificate  of  acknowledgment  is 
notice  of  the  facts  certified  therein  to  all  persons  claim- 
ing under  it.^^ 

J.     FOEM   AND   EEQUIEEMENTS   OF   CEETIFICATE. 

^  217.  Must  Comply  With  Law  in  Force  at  Time  Certificate 
is  Made. — The  form  and  substance  of  certificates  of  ac- 
knowledgments and  proof  are  controlled  by  the  statutes 
in  force  at  the  time  the  certificate  of  acknowledgment 
was  made.^^**  But  if  a  certificate  is  invalid  at  the  time 
it  is  made,  subsequent  laws  adopting  the  form  used  will 
not  cure  it.^®'' 

§  218.  A  Substantial  Compliance  With  Statute  is  All  that 
is  Required. — While  our  statutes,  except  the  earlier  ones, 
provide  forms  to  be  used  for  certificates,  their  use  is 
not  essential  to  valid  certificates  if  the  certificates  con- 
tain all  that  is  necessary  to  show  a  valid  acknowledg- 

193  See  ante,  §§  182-185. 

194  Heintz  v.  O'Donnell,  17  Tex.  Civ.  App.  21,  42  S.  W.  797. 

195  Green  v.  Hugo,  81  Tex.  457,  26  Am.  St.  Eep.  824,  17  S.  W.  79. 
See  ante,  §  66. 

196  Rev.  Stats.  1895,  art.  4661.  See  the  statutory  provisions,  §§ 
220-238. 

197  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

7 


§§219,220     CERTIFICATE    OF    ACKNOWLEDGMENT.  98 

ment.  No  material  fact  should  be  omitted,  while  a  sub- 
stantial compliance  with  the  statute  is  sufficient.^^^ 
The  certificate  must  afford  substantial  evidence  of  the 
requisite  acknowledgment  or  proof.  ^^® 

K.     FOEM    AND    REQUIREMENTS    UNDER    THE    DIFFERENT 

STATUTES. 

§  219.  Prior  to  Act  of  December,  1836. — Previous  to  the 
registration  act  of  December  20,  1836,  no  certificate  of 
acknowledgment  or  proof  was  required.  Conveyances 
of  real  property  were  made  by  a  notary  writing  the  con- 
veyance in  a  register  which  was  signed  by  the  parties, 
the  notary  and  subscribing  witnesses.  This  original 
deed  written  in  the  register  was  called  the  protocol,  a 
copy  of  which  protocol,  called  the  testimonio  or  second 
original,  was  delivered  to  the  purchaser  as  evidence  of 
his  title.  The  protocol  being  a  public  instrument,  there 
was  no  other  registration  of  same.^^®  Failure  by  no- 
tary in  1835  to  note  the  instrumental  witnesses  did  not 
render  the  instrument  void.^**^ 

§  220.  Act  of  December  20,  1836 The  act  of  Decem- 
ber 20,  1836  (taking  effect  from  passage),^^  provided 
no  form  of  certificate  nor  the  substance  of  what  it 
should  contain.^**^  Under  this  act  there  is  some  ob- 
scurity as  to  when  and  what  certificates  are  required. 
Section  34  authorized  chief  justices  of  the  county  court 
to  receive  proofs  and  acknowledgments,  and  attest  the 
same  under  their  seals  of  office.     Section  35  provided 

198  Deen  v.  Wills,  21  Tex.  646;  Monroe  v.  Arledge,  23  Tex.  480; 
Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Rep.  267;  Talbert  v.  Dull, 
70  Tex.  675,  8  S.  W.  530;  Johnson  v.  Thompson  (Tex.  Civ.  App.), 
50  S.  W.  1057. 

199  Holliday  v.  Cromwell,  26  Tex.  188.  See  Livingston  v.  Kettelle, 
41  Am.  Dec.  168,  note. 

200  See  ante,  §  3. 

201  Cowan  v.  Williams,  49  Tex.  395;  Clay  v.  Holbert,  14  Tex.  203. 

202  1  L.  T.  1215. 

203  See  post,  §  410   (§§  34,  35),  §  412  (§  38),  §  357. 


99  OF  SINGLE  PEESONS.  §§221,222 

that  proof  or  acknowledgment  shall  be  certified  by  the 
clerk  and  form  part  of  the  record.  Section  38  provides 
that  proof  may  be  made  before  a  county  judge  or  clerk, 
and  that  the  certificate  of  a  county  judge  that  proof 
was  made  shall  entitle  the  deed  to  registration.  But  it 
does  not  provide  that  a  certificate  shall  be  made  where 
the  proof  is  made  before  the  county  clerk. 

§  221.     Certificate  Required,  When It   is   clear   under 

the  above  act  that  where  the  proof  or  acknowledgment 
is  made  before  any  ofiicer  except  a  county  clerk,  it  must 
be  shown  by  a  certificate  of  such  officer,  to  entitle  it  to 
registration.^*** 

§  222.  Certificates  by  County  Clerks  Required,  When. — It 
is  not  so  clear,  however,  that  a  certificate  of  acknowl- 
edgment or  proof  is  indispensable  under  this  act  where 
the  acknowledgment  or  proof  is  made  before  the  county 
clerk.  When  the  grantor  or  witness  appears  before 
the  clerk  and  acknowledges  or  proves  the  deed,  sec- 
tion 35  makes  it  the  duty  of  the  clerk  to  do  two 
things:  1.  To  record  the  deed;  2.  To  certify  to  the 
acknowledgment  or  proof  which  shall  form  part  of  the 
record.  Section  38  does  not  provide  for  certificate  by 
the  clerk.  In  the  case  of  Holliday  v.  Cromwell,  26  Tex. 
189,  the  attorney  for  appellees  insisted  that  under  the 
act  of  December  20,  1836,  where  the  clerk  admitted  an 
instrument  to  record,  it  would  be  presumed  that  it  was 
acknowledged  or  proved  before  him  in  the  absence  of  a 
certificate  to  that  effect.^^^  The  deed  was  recorded  in 
June,  1841.  The  court,  in  discussing  the  acts  of  Decem- 
ber 20,  1836,  and  January  19,  1839,  says :  "The  laws  in 
force  at  that  time  concerning  the  registration  of  deeds 
required  the  acknowledgment  or  some  proof  of  their 
execution ;  or,  where  the  original  remained  in  the  public 

204  Flemming  v.  Keed,  37  Tex.  152. 

205  Citing  Paschal  v.  Perez,  7  Tex.  357,  358;  Secrest  v.  Jones,  21 
Tex.  123. 


§  222  CEETIFICATE  OF  ACKNOWLEDGMENT.  100 

archives,  a  certificate  of  the  keeper  thereof,  to  authorize 
admitting  them  to  record.'^  And  the  act  of  January 
19,  1839,  required  tliat  a  certificate  of  the  acknowledg- 
ment or  proof  be  made  upon  the  instrument,  and  be- 
come part  of  the  record."  This  case  holds  that  under 
the  act  of  January  19,  1839,  a  certificate  was  required, 
but  it  leaves  it  undecided  as  to  whether  or  not  a  cer- 
tificate by  the  clerk  was  indispensable  under  the  act  of 
December  20,  1836.  Wood  v.  Welder,  42  Tex.  409,  is 
to  the  same  effect.  In  the  case  of  McCarty  v.  Johnson, 
20  Tex.  Civ.  App.  184,  49  S.  W.  1098,  cited  by  Jus- 
tice W^illiams,  holding  a  certificate  of  authentica- 
tion necessary  to  entitle  to  registration,  it  will  be  no- 
ticed that  the  deed  was  first  recorded  in  Austin  county 
in  the  Spanish  records  in  1838,  and  again  in  Harris 
county,  where  the  land  was  located,  in  1848,  without 
certificate  of  acknowledgment  or  proof  in  either  case. 
If  it  had  been  properly  proven  it  could  not  have  been 
properly  recorded  in  Austin  county,  where  the  land  did 
not  lie,  and  the  fact  that  it  was  recorded  there  could 
afford  no  presumption  that  it  was  properly  proved  be- 
fore the  clerk  in  1838,  in  the  absence  of  a  certificate. 
Again,  when  it  was  recorded  in  Harris  county  in  1848, 
a  certificate  was  clearly  required  under  the  law  then  in 
force.  This  case  seems  not  to  be  decisive  of  the  neces- 
sity of  certificates  by  the  clerk  under  the  act  of  1836. 
It  is  well  settled  that  proof  or  acknowledgment,  or  a 
certificate  of  the  keeper  of  an  archive,  is  necessary  to 
entitle  the  instrument  to  registration,  under  the  act 
of  December  20,  1836,^**'^  but  we  have  found  no  case 
holding,  where  a  deed  is  recorded  by  a  county  clerk  un- 
der the  acknowledgment  of  1836,  without  certificate  of 
authentication,    that    it   was    improperly   recorded.^^* 

206  H.  D.,  arts.  2752,  2755,  2760,  2761,  2768. 

207  Holliday  v.  Cromwell,  26  Tex.  194;  McCarty  v.  Johnson,  20 
Tex.  Civ.  App.  184,  49  S.  W.  1100;  Gainer  v.  Cotton,  49  Tex.  115. 

208  See  Paschal  v.  Perez,  7  Tex.  357,  358;  Edwards  v.  James,  7 
Tex.  377;  also  Waters  v.  Spofford,  58  Tex.  121;  Wilson  v.  Simpson, 
80  Tex.  279,  16  S.  W.  40.     But  see  ante,  §  66. 


101  OF  SINGLE  PEESONS.  §§  223-226 

This  act  was  repealed  by  act  of  January  19,  1839,  in  so 
far  as  it  authorized  proof  by  any  except  subscribing 
witnesses.^^^ 

§  223.  Acknowledgment  of  Signature  of  Officer  Sufficient. 
Under  section  35  it  is  held  that  if  the  officer  who  exe- 
cuted the  protocol  and  who  had  issued  to  the  interested 
party  the  copy  or  second  original  appeared  before  the 
county  register  and  acknowledged  his  signature  to  the 
certificate  authenticating  the  testimonio,  it  would  be 
sufficient  to  have  authorized  its  record.^^** 

§  224.  Proof  of  Signature  of  Single  Witness  Sufficient.— 
It  is  also  held  that  this  section  contemplates  proof  or 
acknowledgment  of  the  signature  of  the  signer.  But 
that  section  38,  in  some  contingencies,  would  be  satis- 
fied by  the  proof  of  the  signature  of  a  single  witness.^^* 
It  is  not  requisite  in  all  cases  that  the  proof  of  an  in- 
strument for  record  should  be  made  by  a  subscribing 
witness.  Besides,  the  officer  authenticating  the  instru- 
ment may  prove  it  as  a  subscribing  witness.^^^ 

§  225.  No  Seal  Necessary,  When. — It  seems  that  where 
the  acknowledgment  or  proof  was  made  before  the 
county  clerk  in  whose  office  the  instrument  was  to  be 
recorded,  or  before  the  court,  no  seal  was  necessary  to 
its  authentication.^^^ 

§  226.  When  Grantor  is  Known  to  Officer  it  is  not  Neces- 
sary to  be  Certified — It  was  not  necessary  for  the  certifi- 
cate to  certify  under  this  act  that  the  person  acknowl- 
edging the  instrument  was  known  to  the  officer.^^*     A 

209  McCarty  v.  Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100. 

210  Edwards  v.  James,  7  Tex.  377. 

211  McKissick  v.  Colquhoun,  18  Tex.  152. 

212  McKissick  v.  Colquhoun,  18  Tex.   152. 

213  Waters   v.   Spofford,   58   Tex.   121. 

214  Harvey  v.  Hill,  7  Tex.  591. 


§§227-229      CERTIFICATE   OF   ACKNOWLEDGMENT.  102 

substantial  compliance  with  the  statute  is  all  that  is  re- 
quired.^*^ 

§  227.  The  Act  of  January  19,  1839,2i6  provided  for 
proof  by  one  of  the  subscribing  witnesses  swearing  to 
the  signature  of  the  signer,  or  he  himself  acknowledg- 
ing the  same,  a  certificate  of  which  shall  be  made  upon 
the  instrument  by  the  officer  and  become  part  of  the 
record,  but  provided  no  form  of  certificate.  It  required 
a  certificate  of  acknowledgment  or  proof  to  be  indorsed 
on  the  instrument  and  form  part  of  the  record.  ^^'' 

§  228.  The  Act  of  Fehruary  5,  1840,2i8  required  deeds 
to  be  acknowledged  or  proved  by  two  witnesses.  It 
provided  no  form  of  certificate  of  proof. ^^**  Did  it  re- 
quire certificate  where  acknowledgment  or  proof  was 
made  before  county  clerk  ?^^**  In  case  of  Wood  v. 
Welder,  42  Tex.  409,  the  deed  in  question  was  recorded 
May  14,  1840  (February  14,  1840),  while  the  act  of 
February  5,  1840,  was  in  force,  and  had  probably  re- 
pealed the  act  of  January  19,  1839,^^^  but  the  court, 
not  considering  that,  decided  that  under  the  provisions 
of  the  act  of  January  19,  1839,  the  said  deed  recorded 
by  the  clerk  without  certificate  of  acknowledgment  or 
proof  was  improperly  recorded.  This  case  is  evidently 
not  decisive  of  the  question.' 


222 


§  229.     Act  of  February  5,  184:1.^^^— It  validated  proof 
made  by  one  or  more  of  the  subscribing  witnesses  and 

215  See  ante,  §  218;  Val.  Sts.,  c.  28. 

216  2  L,  T.  52. 

217  See  post,  §  414;  McCarty  v.  Johnson,  20  Tex.  Civ.  App.  184, 
49  S.  W.  1100;  Holliday  v.  Cromwell,  26  Tex.  194;  Wood  v.  Welder, 
42  Tex.  402. 

218  2  L.  T.  327. 

219  Post,  §  416. 

220  Ante,   §§   220-222. 

221  See  post,  §§  622-625. 

222  See  Paschal  v.  Perez,  7  Tex.   356. 

223  2  L.  T.  633. 


103  OF  SINGLE  PEESONS.  §§  230-235 

certified  by  the  of&cer  or  two  subscribing  witnesses  if 
executed  abroad.^^*  Under  this  act,  where  the  witness 
signed  by  making  his  mark  and  swore  "to  the  best  of 
his  knowledge  and  belief  that  he  signed  it,"  it  was  held 
sufficient  proof."^  It  requires  the  acknowledgment 
and  proof  to  be  certified  but  prescribes  no  form. 

§  230.  Act  of  May  8,  1846,2^^  while  authorizing  com- 
missioners of  deeds  to  certify  to  acknowledgments  and 
proofs,  provided  no  form.^'' 

§  232.  Act  of  May  12,  1846. — It  prescribed  certain 
modes  of  proof,  but  no  acknowledgment  and  form  of 
certificate.^*  The  provisions  as  to  proof  under  this 
act  are  still  in  force,  and  a  form  was  provided  by  the 
Revised  Statutes,  1879,  which  was  the  first  and  only 
form.^^ 

§  233.  The  Acts  of  AprH  6,  1861,  January  14,  1862,  No- 
vember 13,  1866,  and  May  6,  1871,  do  not  change  the  mode 
of  proof  or  acknowledgment. 

§  234.  Act  of  March  6,  1863. — It  amended  section  9 
of  May  12,  1816,  by  adding  the  clause  "or  when  the 
grantor  or  person  who  executed  such  instrument  signed 
by  making  his  mark,  of  the  proof  of  the  handwriting  of 
both  of  the  subscribing  witnesses."  It  made  no  other 
change  as  to  the  certificate. 

^  235.  Acts  of  November  13,  1866,^30  August  8,  1879,231 
August  13,  1870,-32  May  6,  1871.233  _These  ^^^.^g  requiring 

224  Post,  §  418. 

225  Stramler  v.  Coe,  15   Tex.   212. 

226  2  L.  T.  1493. 

227  Post,  §  419;  Deen  v.  Wills,  21  Tex.  645. 

228  See  post,  §§  420-423;  Deen  v.  Wills,  21  Tex.  645. 

229  See  post,  §  435. 

230  5   L.   T.    1128. 

231  6  L.  T.  223. 

232  6  L.  T.  251. 

233  6  L.  T.  979. 


§§  236-237      CEETIFICATE  OF  ACKNOWLEDGMENT.  104 

certificates  of  acknowledgments  and  proof  to  be  attested 
under  official  seals,  make  no  provision  as  to  the  form  or 
substance  of  same. 

§  236.  Constitution  of  1875 — Errors. — Article  13,  sec- 
tion 4  of  the  constitution  of  1875,  referring  to  titles  is- 
sued prior  to  November  13,  1835,  indicates  that  mere 
error  in  the  certificate  of  registration  and  any  infor- 
mality not  affecting  the  fairness  and  good  faith  of  the 
holder  thereof,  with  which  the  record  was  made,  shall 
not  be  held  to  vitiate  such  record. 

§  237.  Revised  Statutes  of  1879,  1895— Identity.— Ar- 
ticle 4309  of  the  Revised  Statutes  of  1879  and  article 
4617  of  the  Revised  Statutes  of  1895  (taking  effect  Sep- 
tember 1,  1879),  provided  that  no  acknowledgment  shall 
be  taken  unless  the  officer  taking  it  knows,  or  has  satis- 
factory evidence  on  the  oath  or  affirmation  of  a  credible 
witness,  which  shall  be  noted  in  his  certificate,  that  the 
person  making  such  acknowledgment  is  the  individual 
who  executed  and  is  described  in  the  instrument.  This 
is  in  effect  the  same  as  section  10  of  the  act  of  May  12, 
1846.^^^  The  certificate  since  the  adoption  of  the  Re- 
vised Statutes  of  1879  must  show  the  signer  was  known 
or  proved  to  the  officer. ^^^ 

Form. — Revised  Statutes  of  1879  and  1895,  articles 
4312,  4620  (taking  effect  September  1,  1879),  provided: 
"That  the  form  of  an  ordinary  certificate  of  acknowl- 
edgment must  be  substantially  as  follows: 

State  of  — ' ,         ) 


County  of  — . ) 

Before   me  (here  insert   the  name  and   character  of 

the  officer),  on  this  day  personally  appeared , 

known  to  me  (or  proved  to  me  on  the  oath  of ), 

234  See  ante,  §  93. 

235  Ante,   S   139. 


105  OF  SINGLE  PERSONS.  §  237 

to  be  the  person  whose  name  is  subscribed  to  the  fore- 
going instrument,  and  acknowledged  to  me  that  he  ex- 
ecuted the  same  for  the  purposes  and  consideration 
therein  expressed. 

Given  under  my  hand  and  seal  of  office  this day 

of ,  A.  D. 

[Seal]  ."236 

236  See    ante,    §    91.     For    construction,    repeal,    etc.,    see    "Final 
Title,"  ante,  §  107. 


§§  236-237      CEETIFICATE  OF  ACKNOWLEDGMENT.  104 

certificates  of  acknowledgments  and  proof  to  be  attested 
under  official  seals,  make  no  provision  as  to  the  form  or 
substance  of  same. 

§  236.  Constitution  of  1875 — Errors. — Article  13,  sec- 
tion 4  of  the  constitution  of  1875,  referring  to  titles  is- 
sued prior  to  November  13,  1835,  indicates  that  mere 
error  in  the  certificate  of  registration  and  any  infor- 
mality not  affecting  the  fairness  and  good  faith  of  the 
holder  thereof,  with  which  the  record  was  made,  shall 
not  be  held  to  vitiate  such  record. 

§  237.  Revised  Statutes  of  1879,  1895— Identity.— Ar- 
ticle 4309  of  the  Revised  Statutes  of  1879  and  article 
4617  of  the  Revised  Statutes  of  1895  (taking  effect  Sep- 
tember 1,  1879),  provided  that  no  acknowledgment  shall 
be  taken  unless  the  ofldcer  taking  it  knows,  or  has  satis- 
factory evidence  on  the  oath  or  affirmation  of  a  credible 
witness,  which  shall  be  noted  in  his  certificate,  that  the 
person  making  such  acknowledgment  is  the  individual 
who  executed  and  is  described  in  the  instrument.  This 
is  in  effect  the  same  as  section  10  of  the  act  of  May  12, 
1846.^^^  The  certificate  since  the  adoption  of  the  Re- 
vised Statutes  of  1879  must  show  the  signer  was  known 
or  proved  to  the  officer. ^^^ 

Form. — Revised  Statutes  of  1879  and  1895,  articles 
4312,  4620  (taking  effect  September  1,  1879),  provided: 
"That  the  form  of  an  ordinary  certificate  of  acknowl- 
edgment must  be  substantially  as  follows: 

State  of  — , 


County  of 

Before   me  (here  insert   the  name  and   character  of 

the  officer),  on  this  day  personally  appeared , 

known  to  me  (or  proved  to  me  on  the  oath  of ), 

234  See  ante,  §  93. 

235  Ante,   S   139. 


105  OF  SINGLE  PERSONS.  §  237 

to  be  the  person  whose  name  is  subscribed  to  the  fore- 
going instrument,  and  acknowledged  to  me  that  he  ex- 
ecuted the  same  for  the  purposes  and  consideration 
therein  expressed. 

Given  under  my  hand  and  seal  of  office  this day 

of ,  A.  D. 


[Seal] 


J5236 


236  See    ante,    §    91.     For    construction,    repeal,    etc.,    see    "Final 
Title,"  ante,  §  107. 


§§238,239      CONVEYANCE  BY  MAEEIED  WOMEN.  106 


CHAPTER  VIII. 

ACKNOWLEDGMENT      AND      CONVEYANCE      BY      MAEEIED 
WOMEN   PEIOE   TO   THE   ACT    OF   EEBEUAEY   3,    1841. 

§  238.     Not  required  as  at  present. 

§  239.  Consent  of  husband  required  but  not  separate  acknowledg- 
ment. 

§  240.  Wife's  acknowledgment  taken  in  same  manner  as  single 
person's. 

§  241.  After  adoption  of  common  law,  no  provision  made  until 
1841. 

§  242.     Convey   her   personal   property   without    acknowledgment. 

§  238,  Not  Required  as  at  Present. — Previous  to  the 
act  of  December  20,  1836,  acknowledgment  and  regis- 
tration of  a  married  woman's  conveyance  was  not  re- 
quired as  at  present.^ 

§  239.  Consent  of  Husband  Eequiied  but  not  Separate  Ac- 
knowledgment.— Under  the  Spanish  and  Mexican  laws  in 
force  prior  to  the  adoption  of  the  common-law  act  of 
March  16,  1840,^  no  separate  acknowledgment  of  the 
wife  was  necessary  to  her  conveyances,  nor  was  her  hus- 
band's consent  under  all  circumstances  necessary.  As  a 
general  rule,  the  husband's  consent  was  required,  but 
this  was  for  his  benefit  only  and  might  be  waived.^  A 
sale  of  the  wife's  slaves  by  the  husband  made  with  her 
consent  was  valid  without  her  signature.^  Before  the 
common-law  act  and  the  enactment  of  our  statute  regu- 
lating conveyances  by  married  women  (February  3, 
1841),  it  was  not  necessary  for  the  conveyance  to  show 

1  See  ante,  §  3. 

2  2  L.   T.   177. 

3  Harvey  v.  Hill,  7  Tex.  597;  Groesbeck  v.  Bodman,  73  Tex.  292, 
11  S.  W.  322;   Halbert  v.  Bennett   (Tex.   Civ.   App.),   26   S.  W.  912. 

4  Allen  V.  Urquhart,  19  Tex.  480. 


107  PEIOE  TO  ACT  OF  1841.  §§  240,241 

on  its  face  that  the  husband  assented  thereto,  but  it 
could  be  proven  aliunde,  and  after  a  great  lapse  of  time 
the  assent  of  the  husband  might  be  presumed.^ 

§  240.  Wife's  Acknowledgment  Taken  in  Same  Manner 
as  Single  Person's. — It  seems  that  from  the  registration 
act  of  December  30,  1836,  to  the  adoption  of  the  com- 
mon-law act  March  16,  1840,  proof  or  acknowledgment 
of  a  married  woman's  deed  was  made  in  the  same  man- 
ner as  that  of  a  single  person ;  the  Spanish  law  in  force 
at  this  time  authorized  the  conyeyance  by  a  married 
woman  with  the  consent  of  her  husband,  and  the  regis- 
tration act  of  December  20,  1836,  made  no  distinction 
between  acknowledgments  or  proof  by  married  women 
and  single  persons,  and  her  deed  without  acknowledg- 
ment would  no  doubt  be  good  between  the  parties,  etc.^ 

§  241.  After  Adoption  of  Common  Law,  No  Provision  Made 
Until  1841 — After  the  adoption  of  the  common  law 
(March  16,  1840),  a  married  woman  could  only  convey 
her  real  estate,  if  at  all,  by  fine  and  recovery,  until  the 
passage  of  the  act  of  February  3,  1841.  This  was  no 
doubt  intended  as  a  substitute  for  this  inconvenient 
method  of  conveyance  by  fine  and  recovery.''  But  see 
Ballard  v.  Carmichael,  83  Tex.  363,  18  S.  W.  734,  where 
it  is  held  that  the  statute  of  frauds  of  January  18,  1840, 
required  such  conveyance  to  be  in  writing.  It  seems  to 
be  well  settled  that  since  the  adoption  of  the  acts  of 
February  3,  1841,  and  April  30,  1846,  to  the  present 
time,  they  have  provided  the  only  mode  in  which  mar- 

5  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  912;  Poor  v.  Boyce, 
12  Tex.  447. 

6  See  ante,  §§  220-224;  Harvey  v.  Hill,  7  Tex.  597;  Groesbeck  v. 
Bodman,  73  Tex.  292,  11  S.  W.  322;  Clapp  v.  Engledow,  82  Tex.  290, 
18   S.    W.    146. 

7  Langton  v.  Marshall,  59  Tex.  299;  Groesbeck  v.  Bodman,  73 
Tex.  292,  11  S.  W.  322;  Berry  v.  Donley,  26  Tex.  745;  Roy  v.  Bre- 
mont,   22   Tex.   629. 


§  242  CONVEYANCE  BY  MAEKIED  WOMEN.  lOS 

ried    women    can    convey    their    separate  property    in 
lands.** 

§  242.  Convey  Her  Personal  Property  Without  Acknowl- 
edgment—Under the  acts  of  February  3,  1841,  and 
April  30,  1846,^  sales  of  a  married  woman's  personal 
property  was  not  necessarily  required  to  be  in  writing 
and  acknowledged  by  her.^^  She  could  transfer  her 
personal  property,  except  slaves,  without  separate  ac- 
knowledgment, but  her  conveyances  in  writing  must  be 
privily  acknowledged.*-' 

8  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  E.  A.  779. 

9  Eev.   Stats.   1879-1895. 

10  Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  74,  34  S.  W.  369. 

11  Ballard  V.  Carmichael,  83  Tex.  355,  18  S.  W.  734;  Thompson  v. 
Wilson,  24  Tex.  Civ.  App.  666,  60  S.  W.  355. 


109  CONVEYANCES  BY  MARRIED  WOMEN.  §  243 


CHAPTER  IX. 

CONVEYANCES   BY   MARRIED   WOMEN   AETER  FEBRUARY   3, 

1841. 

§  243.  Wife's   conveyance  must  be   separately  acknowledged. 

§  244.  By  agent  or  attorney. 

§  245.  Executory  contract  for  sale  of  homestead  not  binding. 

§  246.  Executory  contract  for  sale  of  wife's  other  property  binding. 


§  243.  Wife's  Conveyance  Must  be  Separately  Acknowl- 
edged.— The  statute  of  frauds  of  January  18,  1840,  re- 
quired conveyance  of  real  property  to  be  in  writing, 
and  the  acts  of  February  3,  1811,  and  April  30,  1846, 
and  Revised  Statutes  of  1879  and  1895,  provided,  with 
one  exception  (that  is,  where  the  wife  is  deserted,  etc.),* 
the  only  methods  by  which  a  married  woman  may  exe- 
cute a  written  conveyance  of  her  property,  to  wit,  by 
private  examination  and  explanation  by  an  authorized 
officer,  and  her  voluntary  acknowledgment  and  state- 
ment that  she  wished  not  to  retract  it.^  Articles  559 
and  560  of  the  Revised  Statutes  of  1879  provided,  that 
no  conveyances  of  the  homestead  or  the  wife's  separate 
property  shall  take  effect  until  acknowledged  by  her  in 
compliance  with  chapter  2,  title  86,  which  provides  for 
acknowledgments  of  deeds,  etc.  Articles  635  and  636 
of  the  Revised  Statutes  of  1895  provided  that  no  con- 
veyances of  the  homestead  or  the  wife's  separate  prop- 
erty shall  take  effect  until  acknowledged  by  her  in  com- 
pliance with  article  4643.  This  reference  was  evidently 
a  mistake  as  that  article  had  no  application  to  acknowl- 
edgments.    It  seems  that  the  above  statutes  would  be 

1  Wright   V.  Hayes,   10  Tex.   136,  60   Am.   Dec.   200. 

2  Ballard  v.  Carmichacl,  83  Tex.  3G3,  18  S.  W.  734;  San  Autouio 
V.  Grandjean,  91  Tex.  435,  44  S.  W.  476;  and  see  post,  §§  247,  346- 
348b. 


§§244,245      CONVEYANCES  BY  MAEKIED  WOMEN.  110 

construed  as  though  they  referred  to  the  proper  articles.^ 
They  were  corrected  by  the  acts  of  March  26,  1897.^ 
Proof  by  subscribing  witness  was  not  authorized.^ 

§  244.  By  Agent  or  Attorney. — A  married  woman  can- 
not by  power  of  attorney  authorize  her  husband  to  con- 
vey her  property.**  But  if  the  wife  is  joined  by  her 
husband  she  may  give  a  valid  power  of  attorney  to  an- 
other party  to  convey  her  separate  property ,'^  and  such 
an  attorney  in  fact  is  competent  to  make  the  legal  ac- 
knowledgment for  registration  of  his  deed.*  It  is  also 
held  that  she  may  deed  her  homestead  through  an  at- 
torney in  fact,  she,  of  course,  having  the  right  to  re- 
tract at  any  time  before  her  attorney  executed  the 
deed.**  And  a  deed  of  a  married  woman's  land,  exe- 
cuted by  her  husband  and  an  attorney  in  fact,  who  was 
acting  under  a  power  of  attorney  privily  acknowledged 
by  the  wife,  though  she  was  not  joined  therein  by  her 
husband,  is  valid. -^^ 

§  245.  Executory  Contract  for  Sale  of  Homestead  not 
Binding — Executory  contract,  however,  i.  e.,  a  bond  for 
title,  for  sale  of  homestead  duly  executed  and  acknowl- 

3  Post,  §  348. 

4  Post,  §§  348a,  348b. 

5  Utzfield  V.  Bodman,  76  Tex.  361,  13  S.  W.  474. 

6  Cannon  v.  Boutwell,  53  Tex.  627;  Peak  v.  Brinson,  71  Tex.  311, 
11  S.  W.  269;  Mexia  v.  Oliver,  148  JJ.  S.  664,  13  Sup.  Ct.  Eep.  764, 
37  L.  ed.  602;  Cartwell  v.  Eogers,  76  Tex.  374,  13  S.  W.  474,  8  L. 
E.  A.  180.  But  see  Eegan  v.  Halleman,  34  Tex.  412;  Halbert  v. 
Brown   (Tex.  Civ.  App.),  31  S.  W.  535. 

7  Patton  V.  King,  26  Tex.  686,  84  Am.  Dec.  596;  Warren  v.  Jones, 
69  Tex.  465,  6  S.  W.  775;  Jones  v.  Eobbins,  74  Tex.  615,  12  S.  W. 
824. 

8  Patton  V.  King,  26  Tex.  686,  84  Am.  Dec.  596;  Warren  v.  Jones, 
69  Tex.  465,  6  S.  W.  775;  Jones  v.  Eobbins,  74  Tex.  615,  12  S.  W. 
824. 

9  Jones  V.  Goff,  63  Tex.  249;  Jones  v.  Eobbins,  74  Tex.  618,  12  S. 
W.    824. 

10  Nolan  V.  Moore,  96  Tex.  341. 


Ill  SUBSEQUENT   TO  ACT   OF   1841.  §   246 

edged  by  the  husband  and  wife  cannot  be  enforced 
against  her,^^  the  reason  being  that  she  did  not  consent 
to  an  absolute  conveyance,  but  only  a  contract  for  such 
conveyance,  and  she  would  be  deprived  of  her  right  to 
retract  in  case  the  bond  should  be  enforced.*^ 

§  246.  Executory  Contract  for  Sale  of  Wife-s  Other  Prop- 
erty Binding — But  it  is  held  that  a  bond  for  title  for  the 
separate  property  of  the  wife  may  be  enforced,  there 
being  a  distinction  between  separate  property  of  the 
wife  and  the  homestead.  ^^ 

11  Jones  V.  Goff,  63  Tex.  253. 

12  Jones  V.  Bobbins,  74  Tex.  618,  12  S.  W.  824. 

13  Angler  v.  Coward,  79  Tex.  555,  15  S.  W.  698. 


ACKNOWLEDGMENT  BY  MAERIED  WOMEN.  112 


CHAPTER  X. 

ACKNOWLEDGMENT  BY  MARRIED  WOMEN  AFTER  THE  ACT 
OF  FEBRUARY   3,   1841. 

§  247.     The  acknowledgment,  not  the  signature,  is  the  deed  of 

married  women. 
§  248.     Held  that   deed  without   proper   certificate   of  acknowl- 
edgment is  void. 
§  249.     Deed   properly   acknowledged   but    defectively   certified, 

not  void. 
§  250.     First,  it  might  be  reacknowledged. 
§  251.     Second,  waived  by  estoppel. 
§  252.     Third,  validated  by  statute. 
§  253.     Fourth,   corrected   by   action. 
§  254.     Idem. 
§  255.     Acknowledgment  of  wife  properly  taken  but  defectively 

certified  void  as  to  vested  rights. 
§  256.     Acknowledgment   improperly   taken   but   properly   certi- 
fied valid  when. 
§§  257-260.     Requirements   of  valid  acknowledgment. 
§§  257-258.  Privy  examination  essential. 

§  259.  Prior  to  act  of  February  3,  1841. 

§  260.  How  corrected. 

§§  261-262.  Explanation   essential. 

§  263.  By  interpreter  valid. 

§  264.  If  she  knew  contents. 

§  265.  Explanation   where    reference    is    made   to    an- 

other instrument. 
§  266.  Free  from  compulsion. 

§  267.  Right  to  retract. 

§  268.  Grantor  known  or  proved  to  officer. 

§  269.  Extent  of  acquaintance. 

§  270.     May  be  taken   at   different   times— One  may  be   valid 

though  other  invalid. 
§  271.     On  legal  holidays  valid. 

§  272.     Acknowledgment    of   married   woman's   receipt   not    re- 
quired. 
§  273.     Abandoned  by  husband  or  he  is  insane,  she  may  convey 

as  single  person. 
§  273a.  Schedule  of  married  woman's  separate  property. 
(See  "Acknowledgment  and  Proof,"  chapter  3.) 


113  SUBSEQUENT  TO  ACT  OF  1841.  §§   247,248 

§  247.  The  Acknowledgment,  not  the  Signature,  is  the 
Deed  of  Married  Women. — After  the  passage  of  the  acts  of 
February  3,  1841,  and  April  30,  1846,  they  prescribed 
the  only  mode  in  which  a  married  woman  can  convey 
her  real  estate.^  The  acknowledgment  and  not  the 
signature  to  the  instrument  is  the  deed  of  a  married 
woman,  and  to  constitute  a  valid  acknowledgment  there 
must  be  a  privy  examination  and  explanation  by  an 
authorized  officer  and  statement  that  she  willingly 
signed  the  same  and  did  not  wish  to  retract  it.  As  a 
general  rule,  a  deed  by  a  married  woman  not  properly 
acknowledged  is  void  and  conveys  neither  legal  nor 
equitable  title.  It  is  the  examination,  explanation  and 
acknowledgment  that  give  it  validity,  and  not  the  sig- 
nature.^ 

§  248.  Held  that  Deed  Without  Proper  Certificate  of  Ac- 
knowledgment is  Void. — It  is  also  held  in  this  state  by 
some  decisions  that  a  deed  of  a  married  woman  without 
a  proper  certificate  of  acknowledgment  is  not  complete 
so  as  to  convey  title  to  land;  and  that  her  proper  ac- 
knowledgment could  not  be  shown  by  parol  evidence.* 
Previous  to  the  adoption  of  article  4353  of  the  Revised 
Statutes  of  1879,  her  acknowledgment  could  be  shown 
in  no  other  way  than  by  the  certificate  of  the  officer. 
(Johnson  v.  Taylor,  60  Tex.  361.)  In  Starnes  v.  Beitel, 
20  Tex.  Civ.  App.  524,  50  S.  W.  202,  the  court  goes  so 
far  as  to  hold  that  until  a  correction  of  the  certificate, 

2  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  E.  A.  779; 
Cole   V.   Bammel,   62    Tex.    111. 

3  Berry  v.  Donley,  26  Tex.  745;  Cross  v.  Evarts,  28  Tex.  532; 
Cole  V.  Bammel,  62  Tex.  Ill;  Johnson  v.  Bryan,  62  Tex.  626;  Whet- 
stone V.  Coffey,  48  Tex.  272;  Looney  v.  Adamson,  48  Tex.  619;  Garcia 
V.  Ulg  (Tex.  Civ.  App.),  37  S.  W.  471;  Callahan  v.  Patterson,  4  Tex. 
65,  51  Am.  Dec.  712;  Callahan  v.  Houston,  78  Tex.  497,  14  S.  W.  1027; 
Hampshire  v.  Floyd,  39  Tex.  105  (Clayton  v.  Frazer,  33  Tex.  99, 
overruled);  Rhine  v.  Hodge,  1  Tex.  Civ.  App.  368,  21  S.  W.  140;  post 
§§   250,  254. 

4  Looney  v.  Adamson,  48  Tex.  619. 

8 


§§  249,  250     ACKNOWLEDGMENT  BY  MAEEIED  WOMEN.         114 

the  deed  of  a  married  woman  is  void.  In  Looney  v. 
Adamson  the  court  refers  to  Berry  v.  Donley,  26  Tex. 
747,  as  deciding  "that  the  deed  of  a  married  woman  is  not 
complete  so  as  to  convey  title  to  land  without  the  cer- 
tificate of  privy  examination  and  acknowledgment," 
while  the  court  in  that  case  only  decided  that  "the  ex- 
amination, and  not  the  signature,  gives  validity  to 
deeds."  The  distinction  is  clear,  for  if  it  is  the  exam- 
ination, acknowledgment  and  declaration  that  is  the  es- 
sence of  the  deed,  and  the  certificate  only  the  evidence 
of  same,  it  might  be  the  basis  of  a  right  without  the  cer- 
tificate, and  some  cases  hold  that  such  a  deed  is  a  right 
even  though  there  be  no  method  of  enforcing  the  right.'* 

§  249,  Deed  Properly  Acknowledged,  but  Defectively  Cer- 
tified, not  Void. — As  a  deed  of  a  married  woman,  properly 
acknowledged  but  defectively  certified,  is  held  to  be  a 
right  between  the  parties  and  others  with  actual  notice, 
it  cannot  be  void,  although  there  may  be  no  legal  evi- 
dence of  its  existence.  The  defective  deed,  not  being 
void,  might  be  or  become  the  basis  of  a  right  in  several 
ways. 

§  250.  First,  It  Might  be  Reacknowledged. — It  might  be 
reacknowledged  by  the  married  woman  and  the  second 
acknowledgment  would  relate  back  to  the  original  deed. 
In  Starnes  v.  Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W,  203, 
the  opinion  is  expressed  by  the  court  that  the  husband 
and  wife  could  correct  their  certificate  of  acknowledg- 
ment by  reacknowledgment.  In  the  case  under  discus- 
sion the  acknowledgment  was  of  a  mechanic's  lien  on 
the  homestead  which,  to  be  valid,  must  be  fixed  before 
the  labor  is  performed.  The  original  lien,  the  acknowl- 
edgment of  which  was  improperly  certified  to,  could  not 
have  been  corrected  by  subsequent  acknowledgment 
after  the  labor  was  performed,  unless  it  is  the  acknowl- 
edgment, and  not  the  certificate,  which  gives  validity  to 

5  Johnson  v.  Taylor,  60  Tex.  367.     See  post,  §§  250,  254. 


115  SUBSEQUENT  TO  ACT   OF   1841.  §§  251-254 

a  married  woman's  deed,  for  otherwise  it  would  permit 
the  fixing  of  mechanic's  lien  on  the  homestead  after  the 
labor  had  been  performed,  which  the  constitution  pro- 
hibits. Where  the  married  woman's  deed  is  defective 
on  account  of  a  defective  acknowledgment,  she  may 
cure  the  defect  by  a  subsequent  acknowledgment,  and 
in  the  absence  of  intervening  rights  it  will  relate  back 
to  the  time  of  the  original  delivery  of  the  deed,  and  no 
new  delivery  is  required.^ 

§  251.  Second,  Waived  by  Estoppel — The  defect  in  a 
married  woman's  deed  on  account  of  a  defective  ac- 
knowledgment may  be  waived  by  her.'^ 

§  252.  Third,  Validated  by  Statute. — The  defective  cer- 
tificate of  acknowledgment  may  be  validated  by  statute, 
such  as  the  act  of  April  27,  1874,  and  July  28,  1876.^ 

§  253.  Fourth,  Corrected  by  Action. — It  may  be  cor- 
rected by  action  authorized  by  statute  changing  the 
rules  of  evidence  as  by  article  4353  of  the  Kevised  Stat- 
utes of  1879.» 

§  254.  Idem. — In  discussing  the  correction  of  cer- 
tificates of  acknowledgments  by  action  under  this  ar- 
ticle. Judge  Stayton  says  that  article  4353  does  not  at- 
tempt to  create  a  right  where  none  before  existed,  but 
simply  to  permit  parties  to  show,  if  they  can,  by  a  judg- 
ment of  a  court  that  which  before  the  statute  was  en- 
acted could  only  be  shown  by  the  certificate  of  the  des- 
ignated officer.  That  the  legislature  may  alter  the  rules 
of  evidence  as  it  may  other  matters  affecting  solely  the 

6  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  913;  post  §§  995- 
997. 

7  Cole  V.  Bammel,  62  Tex.   117;   and  see  "Estoppel,"  post,   §   313. 

8  Baker  v.  Westcott,   73   Tex.   131,   11    S.    W.    157;    McDaniel    v. 
Harold,  1  U.  C.  521;  post,  §§  1006-1015. 

9  Post,   §§  998-1006;   Williams  v.   Ellingsworth,   75   Tex.  481,   12   S. 
W.  746. 


§254  ACKNOWLEDGMENT  BY  MAREIED  WOMEN.  116 

remedy,  is  well  settled.^*  But  the  above  statements  of 
the  learned  judge  that  the  acknowledgment  could  "only 
be  shown  by  the  certificate  of  the  designated  officer"  is 
evidently  dicta,  as  it  was  not  necessary  for  the  court 
to  determine  whether  or  not  there  were  other  methods 
of  establishing  acknowledgments,  but  whether  or  not  it 
could  be  validated  or  proven  by  action  under  article 
4353.  In  Callahan  v.  Houston,  78  Tex.  497,  14  S.  W. 
1027,  it  seems  that  the  supreme  court  did  not  consider 
parol  evidence  improper  to  correct  the  defective  certifi- 
cate of  a  married  woman's  acknowledgment,  but  this 
was  also  after  the  enactment  of  article  4353  of  the  Re- 
vised Statutes.  In  commenting  on  the  testimony  as  to 
her  acknowledgment  Judge  Stayton  says:  "The  certifi- 
cate was  fatally  defective,  and  the  evidence  of  the  offi- 
cer who  made  it  did  not  show  that  the  facts  would  have 
authorized  him  to  make  one  sufficient."  In  another 
suit  brought  under  article  4353  to  correct  the  certificate 
of  acknowledgment  it  was  held  that  it  was  proper  to 
prove  a  proper  acknowledgment  of  the  wife,  although 
it  was  improperly  certified.**  Where  an  acknowledg- 
ment of  a  married  woman  is  properly  taken,  but  de- 
fectively certified  to,  the  defect  in  certificate  does  not 
destroy  the  title  of  the  purchaser,  and  an  action  may  be 
maintained  to  correct  the  certificate.*^  In  Starnes  v. 
Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W.  203,  it  was  held 
that  the  defective  certificate  of  a  married  woman's 
acknowledgment  properly  taken  might  be  reformed 
by  an  action  brought  within  four  years.  This  was 
equivalent  to  holding  that  it  is  the  acknowledgment, 
and  not  the  certificate  of  acknowledgment,  which 
gives  validity  to  a  married  woman's  deed,  for  Hn 
that  case  the  acknowledgment  Avas  of  a  mechanic's 
lien    on  the    homestead,  which  must  be    fixed,  to    be 

10  Johnson   v.    Taylor,   60   Tex.    362;    Webb   v.   Den,   17    How.   578, 
15  L.  ed.  35. 

11  Leach  v.  Dodson,  64  Tes.  189. 

12  Williams   v.   Ellingsworth,   75   Tex.   481,    12   S.   W.    71G. 


117  SUBSEQUENT   TO   ACT   OF   1841.  §§  255, 256 

valid,  before  the  labor  is  performed,  and  the  court, 
by  holding  that  the  certificate  could  be  reformed 
and  validated  by  action  at  any  time  before  four  years 
had  expired  and  after  the  labor  was  performed,  in  effect 
held  that  it  was  the  acknowledgment,  and  not  the  cer- 
tificate of  it,  which  must  be  made  before  the  labor  is  per- 
formed. The  court,  however,  expresses  the  opinion 
that  until  the  certificate  is  corrected  the  deed  or  mort- 
gage is  void  even  between  the  parties.^^ 

§  255.  Acknowledgment  of  Wife  Properly  Taken  but  De- 
fectively Certified  Void  as  to  Vested  Rights An  acknowl- 
edgment of  a  married  woman  properly  taken  but  de- 
fectively certified,  it  seems,  would  be  void  as  to  vested 
rights.^'* 

§  256.  Acknowledgment  Improperly  Taken  but  Properly 
Certified  Valid  When. — An  acknowledgment  improperly 
taken  but  properly  certified  would  be  valid  as  to  inno- 
cent purchasers  for  a  valuable  consideration  without 
notice,  provided  the  married  woman  had  appeared  be- 
fore the  officer  for  the  purpose  of  acknowledging  the 
same  and  had  attempted  to  acknowledge  it.^^  A  wife 
cannot  defeat  her  deed  by  showing  that  she  did  not  un- 
derstand its  import  unless  the  grantee  knew  it  was  not 
understood.  ^^  And  a  certificate  of  her  acknowledg- 
ment is  conclusive  of  the  facts  therein  stated  where  the 
conduct  of  the  grantee  is  in  good  faith  and  he  pays  a 
valuable  and  adequate  consideration  for  the  land.*'' 
And  a  pre-existing  deed  is  such  valuable  consideration 

13  See  "Parol  Evidence,"  ante,  §§  174-185. 

14  Am,  &  Eng.  Ency.  of  Law,  2d  ed.,  568. 

15  Forbes  v.  Thomas  (Tex.  Civ.  App.),  51  S.  W.  1097;  Hurst  v. 
Finley  (Tex.  Civ.  App.),  54  S.  W.  1072,  22  Tex.  Civ.  App,  605,  55 
S.  W.   388. 

16  Miller  v.  Yturria,  69  Tex.  553,   7  S.   W.  206. 

17  Waltec  V.  Weaver,  57  Tex.  569;  Webb  v.  Burney,  70  Tex.  325,  7 
S.  W.   841. 


§§257,258     ACKNOWLEDGMENT  BY  MAEEIED  WOMEN.         118 

as  will  sustain  the  deed.*^  But  it  is  not  valid  nor  con- 
clusive where  the  grantor  did  not  attempt  to  acknowl- 
edge it.^'** 

§  257.  Requirements  of  Valid  Acknowledgment — ^Privy 
Examination  Essential.*— It  is  well  settled  in  this  state 
that  there  must  be  a  privy  examination  apart  from  her 
husband,  or  a  married  woman's  deed  passes  no  title; 
and  where  this  has  not  been  done  she  and  those  claim- 
ing under  her  may  recover  it  by  suit,  unless  estopped  by 
some  representation  or  act  on  her  part,  relied  and  acted 
upon  so  as  to  operate  as  a  fraud  upon  a  purchaser  in 
the  event  of  such  recovery.^*^ 

§  258.  Idem — An  instrument  of  a  married  woman 
without  privy  examination  is  no  deed,  nor  does  age  give 
it  any  validity.^^  Nor  does  such  a  deed  convey  any  in- 
terest in  the  wife's  separate  property. ^^  This,  how- 
ever, does  not  preclude  equities  from  being  set  up  and 
enforced  when  a  proper  case  shall  have  been  pre- 
sented.^^ The  statement  that  "she  was  examined  and 
interrogated  by  me  touching  the  same"  was  insuffi- 
cient.^* The  acknowledgment  is  not  vitiated  by  mere 
presence  of  grantee  at  the  examination.^^ 

18  Waltee  v.  Weaver,  57  Tex.  569;  Webb  v.  Burney,  70  Tex,  325, 
7  S.  W.  841;  Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App.  263,  27  S.  W. 
151. 

19  Ante,  §   213. 

20  Fitzgerald  v.  Turner,  43  Tex.  87;  McDaniel  v.  Garrett,  11  Tex. 
Civ.  App.  57,  31  S.  W.  721.     See  ante,  §  256. 

21  Parker  v.  Chancellor,  73  Tex.  479,  11  S.  W.  503;  Kincaid  v. 
Jones,  2  U.  C.  534. 

22  Coffey  v.  Hendricks,  66  Tex.  676,  2  S.  W.  47;  Cross  v.  Evarts, 
28  Tex.  525;  Berry  v.  Donley,  26  Tex,  738;  Groesbeck  v,  Bodman, 
73  Tex,  287,  11  S,  W.  322. 

23  Womack  v.  Womack,  8  Tex.  397,  58  Am.  Dec.  119;  Fitzgerald 
V.  Turner,  43  Tex.  87;  post,  313. 

24  Eunge  v.  Sabin  (Tex.  Civ.  App.),  30  S.  W.  568. 

25  Tippett  v.  Brooks,  67  S.  W.  512. 


119  SUBSEQUENT   TO   ACT    OF   1841.  §§  259-262 

§  259.  Prior  to  Act  of  February  3,  1841 — Prior  to  the 
act  of  February  3,  1841,  a  separate  examination  of  mar- 
ried women  was  not  required,  and  her  deed  without  it 
was  good.^^ 

§  260.  How  Corrected. — A  deed  by  a  married  woman 
defectively  certified  that  passed  from  the  custody  of  the 
notary  who  conducted  the  examination  can  be  corrected 
by  the  notary  without  re-examination,  and  such  a  deed 
is  not  void.^''  The  use  of  "separate"  instead  of  "priv- 
ily" in  a  certificate  of  acknowledgment  to  a  deed  of  a 
married  woman  is  cured  by  the  act  of  July  28,  1876."" 


28 


§  261.  Explanation  Essential. — As  a  general  rule,  an 
acknowledgment  and  deed  of  a  married  woman  without 
a  proper  explanation  of  its  contents  is  invalid  and  void- 
able, even  though  the  certificate  is  in  proper  form.^^ 
If  this  defect  is  shown  by  the  certificate  of  acknowledg- 
ment, the  deed  is  void.^^  It  is  not  sufficient  that  the 
wife  declared  that  she  fully  understood  the  contents  of 
her  deed,  but  the  certificate  must  show  that  the  oflftcer 
fully  explained  the  contents  of  the  deed  to  her.^* 

§  262.  Idem. — The  omission  of  the  word  "explained" 
in  a  certificate  of  acknowledgment  of  a  married  woman 

26  Harvey  v.  Hill,  7  Tex.  591;  Groesbeck  v.  Bodman,  73  Tex.  292, 
11  S.  W.  322. 

27  Stone  V.  Sledge,  87  Tex.  49,  24  S.  W.  697.     See  chapter  28. 

28  McDaniel  v.  Harold,  1  U.  C.  526. 

29  Cole  V.  Bammel,  62  Tex.  113;  Ehine  v.  Hodge,  1  Tex.  Civ.  App. 
368,  21  S.  W.  140;  Jones  v.  Bobbins,  74  Tex.  615,  12  S.  W.  824;  John- 
son V.  Bryan,  62  Tex.  625;   Kuleman  v.  Pritchett,  56   Tex.  483. 

30  Norton  v.  Davis,  83  Tex.  36,  18  S.  W.  430.  For  the  exceptions 
to  this  rule,  see  ante,  §   256. 

31  Langton  v.  Marshall,  59  Tex.  297;  Euleman  v.  Pritchett,  56  Tex. 
485;  Burkett  &  Murphy  v.  Scabborough,  59  Tex.  499;  Eunge  v.  Sabin 
(Tex.  Civ.  App.),  30  S.  W.  568;  Edens  v.  Simpson  (Tex.),  17  S.  W. 
788;   Johnson  v.   Taylor,   60   Tex.   369. 


§§  263-266     ACKNOWLEDGMENT  BY  MARRIED  WOMEN.         120 

without  some  equivalent  expression  is  fatal  to  the  cer- 
tifieat.e.32 

§  263.  By  Interpreter  Valid. — ^The  explanation  may 
be  made  by  an  interpreter  selected  by  her,  and  when  so 
made  she  will  not  be  heard  to  say  that  the  interpreter 
was  incompetent  and  failed  to  make  proper  explana- 
tion. The  proper  practice  would  be  to  swear  the  inter- 
preter.^^ 

§  264.  If  She  Knew  Contents.— It  is  held  that  if  it  ap- 
pear from  the  certificate  that  the  wife  knew  the  con- 
tents of  the  deed  that  would  be  sufficient,  and  that  it 
might  be  fairly  presumed  that  it  was  explained  to  her. 
The  explanation  would  be  immaterial  if  it  appeared 
that  she  had  the  knowledge.^'* 

§  265.  Explanation  Where  Reference  is  Made  to  Another 
Instrument,  etc. — ^Where  a  deed  of  a  married  woman  re- 
fers to  another  instrument  it  is  not  necessary  to  ex- 
plain the  other  instrument  to  her.^^  Nor  is  it  neces- 
sary to  explain  another  instrument  connected  with  the 
same  transaction,  though  not  signed  by  the  wife.^®  An 
explanation  is  not  necessary  where  the  wife  has  been 
abandoned  by  the  husband.^'^  Nor  is  it  necessary  in 
case  of  a  widow.^®     Nor  where  husband  is  insane.^® 

§  266.  Free  from  Compulsion — The  deed  of  a  married 
woman  must  be  signed  freely  and  willingly. ^^    As  a 

32  Moores  v.  Linney,  2  Tex.  Civ.  App.  293,  21  S.  W.  709. 

33  Waltee  v.  Weaver,  57  Tex.  569;  Herring  v.  White,  6  Tex.  Civ. 
App.  249,  25  S.  W.  1016. 

34  Deen  v.  Wills,  21  Tex.  646. 

35  Bull  V.  Coe,  77  Cal.  54,  11  Am.  St.  Rep.  235,  18  Pac.  808. 

36  Andrews  v.  Bonham,  19  Tex.  Civ.  App.  179,  46  S.  W.  902. 

37  Wright   v.   Hayes,   10   Tex.   130,   60   Am.   Dec.   200;   Breitling  v. 
Chester,  88  Tex.  590,  32  S.  W.  527. 

38  Beville  v.  Jones,  74  Tex.  148,  11  S.  W.  1128. 

39  Post,   §   273. 

40  Belcher  v.   Weaver,  46   Tex.   295,   26   Am.   Rep.   267;    Thompson 


121  SUBSEQITEA^T  TO  ACT  OF  1841.  §  267 

general  rule,  without  such  willing  assent  her  deed 
would  be  voidable,  but  her  actions  in  many  cases  would 
estop  her  from  setting  it  aside."**  Under  the  act  of 
April  30,  1846,  a  certificate  of  acknowledgment  failing 
to  show  that  the  married  woman  mllingly  signed  the 
deed  is  a  nullity."*^  The  use  of  the  words  "free  act,"  and 
the  omission  of  the  words  "willingly  signed  the  same," 
in  the  certificate  of  acknowledgment  of  a  married 
woman  is  not  fatal.*^ 

§  267.  Right  to  Retract. — A  married  woman  may  up 
to  the  last  moment  before  the  title  passes,  by  retracting 
what  she  contemplated  doing,  defeat  the  conveyance.'*^ 
The  certificate  must  show  that  at  the  time  of  the  ac- 
knowledgment the  married  woman  declared  that  she 
did  not  wish  to  retract  the  deed.^^  Although  the  cer- 
tificate fails  to  show  that  the  wife  did  not  wish  to  re- 
tract it,  yet  if  an  equivalent  expression  is  used,  it  will  be 
sufiicient."*^  The  omission  of  the  word  "it"  in  the  ex- 
pression ''she  did  not  wish  to  retract  it"  is  immaterial.*'' 
The  use  of  the  word  "contract"  for  "retract"  in  a  mar- 
ried woman's  certificate  is  not  fatal.*^     A  declaration 

V.  Johnson,  84  Tex.  553,  19  S.  W.  784;  Black  v.  Garner  (Tex.  Civ. 
App.),  63  S.  W.  920;  Coombes  v.  Thomas,  57  Tex.  322;  Davis  v.  Mc- 
Cartney,  64  Tex.   585. 

41  See  ante,   §   256. 

42  Smith  V.  Elliott,  39  Tex.  209. 

43  Wilson  V.  Simpson,  80    Tex.  281,  16  S.  W.  40.     See  post,  §  298. 

44  Jones  V.  Goff,  63  Tex.  255;  GoflP  v.  Jones,  70  Tex.  575,  8  Am. 
St.  Eep.  619,  8  S.  W.  525;  Williams  v.  Graves,  7  Tex.  Civ.  App.  365, 
26  S.  W.  338;  Winn  v.  Winn,  23  Tex.  Civ.  App.  618,  57  S.  W.  81.  And 
see  Warren  v.  Jones,  69  Tex.  466,  6  S.  W.  776;  Stitzle  v.  Evans,  74 
Tex.  599,  12  S.  W.  326;  Jones  v.  Bobbins,  74  Tex.  618,  12  S.  W.  824; 
Murphy  v.  Eeynaud,  2  Tex.  Civ.  473,  21  S.  W.  992. 

45  Davis  V.  Agnew,  67  Tex.  210,  2  S.  W.  43,  376. 

46  Adams  v.   Pardue    (Tex.   Civ.   App.),   36   S.   W.   1018. 

47  Moores  v.  Linney,  2  Tex.  Civ.  App.  293,  21  S.  W.  709;  Mont- 
gomery V.  Hornburger,  16  Tex.  Civ.  App.  28,  40  S.  W.  628. 

48  Belcher  v.  Weaver,  46  Tex.  295,  26  Am.  Kep.  267.  See  "Es- 
toppel," post,  §  313,  and  ante,  §  256. 


§§  268,  269     ACKNOWLEDGMENT  BY  MAEEIED  WOMEN.         122 

in  the  acknowledgment  by  the  wife  that  she  consented 
that  the  deed  be  recorded  was  equivalent  to  a  statement 
that  she  did  not  wish  to  retract  it.^^ 

§  268.  Grantor  Known  or  Proved  to  Officer. — Under  the 
laws  in  force  until  the  Revised  Statutes  of  1879 
went  into  effect,  it  was  not  necessary  for  the  certifi- 
cate to  state  that  the  grantor  was  known  to  the 
officer.®**  But  under  the  present  law  in  force  since  tjie 
adoption  of  the  Revised  Statutes  of  1879  a  stricter  rule 
of  construction  is  applied.®^  Since  the  Revised  Stat- 
utes of  September  1,  1879,  went  into  effect  the  certifi- 
cate of  acknowledgment  must  show  that  the  grantor  or 
person  making  the  acknowledgment  was  known  to  the 
officer  or  that  proof  of  identity  was  made  before  him.®^ 
The  certificate  under  Revised  Statutes  since  1879  must 
show  that  grantor  was  known  or  made  known  to  offi- 
cer.®^ 

§  269.  Extent  of  Acquaintance. — A  certificate  reciting 
that  the  officer  knew  the  grantor  by  introduction  by  the 
grantee  does  not  invalidate  the  acknowledgment.®^ 
The  law  does  not  prescribe  the  extent  of  the  acquaint- 
ance which  is  necessary,  and  justify  the  officer  in  cer- 
tifying the  person  who  presents  himself  is  known  to 
the  officer  to  be  the  person  who  signed  the  instrument 

49  Masterson  v.  Harris,  6  Tex.  L.  J.  153. 

50  Watkins  v.  Hall,  57  Tex.  4;  Sowers  v.  Peterson,  59  Tex.  219; 
ante,  §  139. 

51  Watkins  v.  Hall,  57  Tex.  4;  Sowers  v.  Peterson,  59  Tex.  219; 
Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S.  W.  1057;  Thompson  v. 
Johnson,  92  Tex.  358,  51  S.  W.  23;  Slack  v.  Dawes,  3  Tex.  Civ.  App. 
520,  22  S.  W.  1053;  Sloan  v.  Thompson,  4  Tex.  Civ.  App.  426,  23  S. 
W.  613;  Watkins  v.  Hall,  57  Tex.  1;  DriscoU  v.  Morris,  2  Tex.  Civ. 
App.  603,  21  S.  W.  629;  Hill  v.  Smith,  6  Tex.  Civ.  App.  316,  25  S. 
W.   1079. 

52  Davidson  v.  Wallingford,  88  Tex.  623,  32  S.  W.  1030;  McKie  v. 
Anderson,  78  Tex.  207,  14  S.  W.  576. 

53  Hurst  V.  Finley,  22  Tex.  Civ.  App.  605,  55  S.  W.  388. 

54  Lindley  v.  Lindley,  92  Tex.  446,  49  S.  W.  573. 


123  SUBSEQUENT  TO  ACT  OF  1841.  §  270 

in  question,  but  that  question  is,  and  necessarily  must 
be,  submitted  to  the  decision  of  such  officer  under  the 
facts  as  they  exist  at  the  time  the  act  is  taken.^^  When 
the  officer  certifies  that  grantor  was  known  to  him,  it 
will  be  taken  as  sufficient  unless  the  certificate  shows 
on  its  face  the  fact  that  the  grantor  was  unknown.^^ 
And  the  words  ("by  introduction  by  grantee")  may  be 
taken  as  surplusage,  but  the  court  does  not  hold  that 
an  introduction  is  sufficient.^'' 

§  270.  May  be  Taken  at  Different  Times — One  may  be 
Valid  Though  Other  Invalid. — It  is  not  necessary  that  the 
acknowledgment  of  a  married  woman  be  taken  at  the 
same  time  or  by  the  same  officer  as  that  of  the  husband, 
but  it  may  be  made  years  later.^^  It  is  held  in  Illg  v. 
Garcia  (Tex.  Civ.  App.),  45  S.  W.  857,  that  a  deed  of  a 
married  woman  not  acknowledged  by  her  husband  is  void. 
It  seems  from  the  statement  of  facts  that  both  husband 
and  wife  joined  in  the  deed  and  that  the  acknowledg- 
ment of  the  wife  was  in  proper  form,  but  the  court  held 
that  it  was  void  as  to  her.^®  It  is  doubtful  if  this  doc- 
trine will  be  sustained;  the  contrary  and  seemingly 
the  better  rule  is  held  in  Rork  v.  Shields,  16  Tex.  Civ. 
App.  640,  42  S.  W.  1032,  where,  in  a  joint  deed,  the  cer- 
tificate was  bad  as  to  the  husband  but  good  as  to  the 
wife,  the  registration  as  well  as  the  deed  was  held  good 
as  to  the  wife.  It  is  held  in  Chester  v.  Breitling  (Tex. 
Civ.  App.),  30  S.  W.  464,  that  an  acknowledgment  by  a 
married  woman  after  her  husband's  death  to  a  deed  of 
her  separate  property  executed  by  both  husband  and 
wife  during  coverture  does  not  validate  the  deed,  even 

55  Lindley  v.  Lindley,  92  Tex.  446,  49  S.  W.  573. 

56  Lindley  v.  Lindley,  92  Tex.  446,  49  S.  W.  573. 

57  Lindley  v.  Lindley   (Tex.),  57  S.  W.   159,  same  case  on  appeal. 
And  see  ante,  §  256. 

68  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  912. 
59  See  facts  stated  in  Garcia  v.  Illg,   14  Tex.  Civ.  App.  482,  37 
8.  W.  472. 


§§  271-273a     ACKNOWLEDGMENT  BY  MAEEIED  WOMEN.       124: 

as  against  herself,  but  this  case  is  reversed  and  the  cor- 
rect rule  recognized  in  Breitling  v.  Chester,  88  Tex. 
589,  32  S.  W.  527.  The  wife  may  retract  at  any  time 
before  the  title  passes.^** 

§  271.  On  Legal  Holidays  Valid — Acknowledgments 
taken  on  Sunday  or  a  legal  holiday  are  valid.^^ 

§  272.  Acknowledgment  of  Married  Woman's  Receipt  not 
Required. — An  acknowledgment  is  not  required  to  a  re- 
ceipt of  a  married  woman  admitting  advances  received 
and  releasing  a  certain  part  of  her  father's  estate.^^ 

§  273.  When  Abandoned  by  Husband  or  He  is  Insane,  She 
may  Convey  as  Single  Person. — Where  the  wife  has  been 
abandoned  by  her  husband,  the  statute  requiring  sepa- 
rate examination,  etc.,  does  not  apply  to  her.^^  Nor 
where  her  husband  is  insane.®* 

§  273a.  Schedule  of  Married  Woman's  Separate  Property. 
Under  the  act  of  April  29,  1846,  a  married  woman  was 
permitted  to  acknowledge  and  record  a  schedule  of  her 
separate  property.^  It  was  not  required,  however,  and 
she  waived  no  right  by  neglect  to  do  so,  but  it  might  at 
some  time  serve  as  evidence  of  her  right.®®  It  is  not 
clear  from  said  act  how  her  acknowledgment  should  be 
taken,  but  it  does  not  seem  to  require  a  joint  acknowl- 
edgment of  herself  and  husband,  as  her  deed  would.®'^ 

60  Jones  V.  Goff,  63  Tex.  255. 

61  See  ante,  §  128. 

62  French  v.  Strumberg,  52  Tex.  93. 

63  Wright  V.  Hayes,  10  Tex.  130,  60  Am.  Dec.  200;  Breitling  v. 
Chester,  88  Tex.  586,  32  S.  W.  527;  Heidenheimer  v.  Thomas,  63  Tex. 
287. 

64  Clark  V.  Wicker  (Tex.  Civ.  App.),  30  S.  W.  1114. 

65  Post,   §   328. 

66  Edrington  v.  Mayfield,  5  Tex.  367;  Le  Gierce  v.  Moore,  59  Tex. 
473. 

67  See   1  L.  T.   1459.     "Parol  Evidence,"  ante,   §   174. 


125  CEETLPICATION  OF  ACKNOWLEDGMENTS. 


CHAPTER  XI. 

€EETIFICATION      OF      ACKNOWLEDGMENTS      OF     MAEEIED 

WOMEN. 

A.     GENEEAL  TEXT. 

•§  274.  No  separate  acknowledgment  required  prior  to  1841. 

§  275.  Certificate  of  acknowledgment  essential  and  conclusive. 

■§  276.  Conclusive  if  grantee  innocent  purchaser  for  value. 

5  277.  Not  conclusive  if  grantee  is  chargeable  with  notice. 

§  278.  Not  conclusive  if  grantor  did  not  acknowledge. 

§  279.  Defective   certificate   does   not   render   deed  void   when. 

§  280.  Wife's  deed  not  complete  without  certificate  of  acknowledg- 
ment. 

§  281.  Held  wife's  deed  void  until  certificate  corrected. 

§   282.  Amendment. 

§  283.  Certificate  proven,  how. 

5  284.  Parol  evidence. 

§  286.  Form  of  certificate  of  married  woman's  acknowledgment. 

-§  287.  Substantial  compliance  with  statute  necessary. 

^  288.  May  be  invalid  as  to  husband  but  valid  as  to  wife. 

§  289.  Must  certify  what. 
■§  290.  Separate  and  privy  examination. 

§  291.  "Separate"  instead  of  "privily." 

§  292.  "Apart  from  her  husband"  suflicient. 

f  293.  Explanation. 

§  294.  Omission  of  "explained  to  her"  fatal. 

§  295.  Wife  otherwise  knew  contents  of  deed. 

§  296.  "Explained"  equivalent  to  "fully  explained." 

§  297.  Certificate   not    defective   for   failing   to    show    that 

deed  was  shown  to  wife, 
f  298.  Free  from  compulsion. 

§  299.  "Free"  instead  of  "willingly." 

I  300.  "Eetract." 

§  301.  "Known  to  me." 

§  302.  Acknowledgment  must  be  personal  to  officer. 

§  304.  Official  character  must  be  shown. 

§  305.  Official  seal. 

§  306.  Signature  of  officer. 

§  307.  Certain  omissions  immaterial. 

§  308.  Identity  of  grantor  and  person  acknowledging  deed. 

§  309.  Omissions  and  errors. 


§ 

310. 

§ 

311. 

§ 

312. 

§ 

313. 

§ 

314. 

§ 

315. 

§ 

316. 

§ 

317. 

§ 

318. 

§ 

319. 

§ 

320, 

§ 

321. 

§ 

322, 

§ 

323. 

§ 

324, 

CERTIFICATION  OF  ACKNOWLEDGMENTS.  126 

Error  clearly  clerical  not  fatal. 

Material  omissions  fatal. 
Equivalent   expressions. 
Estoppel  and  eqiiities. 

In  case  of  partition. 

Where  wife  's  land  is  released. 

Where  fraud  is  practiced  by  wife. 

Not  estopped  simply  because  she  received  the  benefits. 
Defective   certificate   of   valid   acknowledgment. 
Conclusiveness  of  certificate  of  wife's  acknowledgment. 

Same  strictness  does  not  apply  to  wife's  as  to  husband's. 

Cannot  show  want  of  capacity  in  ofl&cer,  etc. 

Officer    cannot    explain    certificate,    but    may    prove    ac- 
knowledgment properly  taken. 

May  be  avoided  by  her  when. 
Presumption  is  that  certificate  recites  the  facts. 

B.     STATUTORY     PROVISIONS     CONCERNING   ACKNOWLEDG- 
MENTS OF  MARRIED  WOMEN. 

§  325.  Act  of  February  3,  1841 — ^Requirements  and  form, 

§  326.  Idem— Annotated. 

§  327.  Act  of  February  5,  1841— Validates  want  of  authority  in  cer- 
tain officers. 

§  328.  Act  of  April  29,  1846 — Acknowledgment  of  schedule  of  wife's 
property. 

§  329.  Act  of  April  30,  1846— Requirements  and  form. 

§  330.  Idem— Annotated. 

§  331.  How  taken  -vYithout  the  state. 

§  332.  Above  law  applies  to  what  property. 

§  333.  Repeals  other  laws. 

§  334.  Act  of  May  8,  1846— Commissioners  of  deeds. 

§  335.  Act  of  May  13,  1846— Notaries  authorized. 

§  336.  Act  of  May  12,   1846— Form  and  requirements  not   affected. 

§  337.  Act  of  March  16,  1848 — Form  and  requirements  not  affected. 

§  338.  Act  of  December  18,  1849— Form  and  requirements  not  af- 
fected. 

§  339.  Act  of  February  9,  1856— Validates. 

§  340.  Act  of  February  9,  1860— Validates, 

§  341.  Act  of  August  13,  1870— Validates. 

§  342.  Act  of  April  27,  1874— Validates. 

§  343.  Act  of  May  25,  1876 — ^Form  and  requirements  not  affected. 

§  344.  Act  of  July  28,  1876— Validates. 

§  345.  Revised  Statutes  of  1879  and  1895— Requirements  of  wife's 
acknowledgment. 

§  346.  Husband  must  join  wife  in  her  conveyance. 

§  347.  Conveyance  of  homestead  must  be  acknowledged  by  wife. 

§  348.  Form  of  certificate  of  wife's  acknowledgment. 


127  OF    MAREIED    WOMEN.  §§  274-276 

§  348a.  Act  of  March  26,  1897 — Conveyance  of  laomestead. 
§  348b.  Conveyance  of  wife's  separate  property. 

For  officers  authorized,  see  chapters  20  to  27. 

For  certificate  prior  to  December  20,  1836,  see  ante,  chapter  1. 

A.     GENEEAL  TEXT. 

§  274.  No  Separate  Acknowledgment  Required  Prior  to 
1841.— From  1836  to  February  3,  1841,  the  same  certifi- 
cates of  acknowledgment  were  required  for  married 
women  as  for  single  persons.^  During  that  time  a  deed 
of  a  married  woman  without  an  acknowledgment,  or 
certificate  of  same,  would  be  good  between  the  parties, 
the  acknowledgment  not  being  the  essence  of  her  deed 
until  after  the  act  of  February  3,  1841 


§  275.  Certificate  of  Acknowledgment  Essential  and  Con- 
clusive.—Since  the  act  of  February  3,  1841,  a  certificate 
of  acknowledgment  in  proper  form  has  been  essential 
to  the  conveyance,^  and  conclusive  of  the  facts  recited, 
if  relied  on  by  innocent  purchaser  for  value,  and  the 
married  woman  appeared  before  the  officer  and  at- 
tempted to  acknowledge  the  same,  even  though  the  ac- 
knowledgment was  improperly  taken.^  Her  deed  can- 
not be  proved  by  subscribing  mtnesses.^ 

§  276.  Conclusive  if  Grantee  Innocent  Purchaser  for 
Value.— It  seems  well  settled  that  the  wife  cannot  defeat 
her  deed  by  showing  that  she  did  not  understand  it,  or 
that  the  officer  did  not  properly  explain  it  to  her,  un- 

1  Ante,    §§    238-242. 

2  Ante,  §  247. 

3  Post,  §  280. 

4  Forbes  v.  Thomas  (Tex.  Civ.  App.),  51  S.  W.  1097;  Hurst  v.  Fin- 
ley  (Tex.  Civ.  App.),  54  S.  W.  1072;  Miller  v.  Yturria,  69  Tex.  553, 
7  S.  W.  206;  Waltee  v.  W'caver,  57  Tex.  569;  Webb  v.  Burney,  70 
Tex.  325,  7  S.  W.  841;  Freiberg  v.  Do  Lamar  (Tex.  Civ.  App.),  27 
S.   W.    151. 

5  Ante,   §   243. 


§§  277-279     CERTIFICATION  OF  ACKNOWLEDGMENTS.  128 

less  she  also  sllo^ys  that  these  facts  were  known  to  the 
grantee.^ 

§  277.  Not  Conclusive  if  Grantee  is  Chargeable  with  No- 
tice.— But  a  married  woman's  deed  may  have  the  proper 
certificate  and  yet  be  avoided  by  her  if  the  certificate 
does  not  speak  the  truth,  or  the  deed  or  acknowledg- 
ment was  obtained  by  fraud  or  force,  provided  the  pur- 
chaser is  charged  with  notice  of  these  facts  before  the 
purchase  money  is  paid.'^ 

§  278.  Not  Conclusive  if  Grantor  did  not  Acknowledge. — 
Where  a  deed  of  the  wife  is  regular  in  form  and  has  a 
regular  certificate  of  acknowledgment  which  shows  on 
its  face  proper  acknowledgment  of  the  wife,  if  in  truth 
the  wife  never  appeared  before  the  officer  nor  attempted 
to  acknowledge  same,  his  false  certificate  will  be  void, 
and  this  may  be  shown  by  parol  evidence.®  The  officer 
has  no  more  right  to  certify  to  an  acknowledgment  she 
did  not  make  than  to  forge  her  name.  But  if  she  ap- 
pear before  him  for  that  purpose  and  attempts  to  ac- 
knowledge it,  although  the  acknowledgment  was  not 
properly  taken,  his  certificate  would  be  conclusive  as 
to  innocent  purchasers.^ 

§  279.  Defective  Certificate  does  not  Render  Deed  Void 
When. — A  defective  certificate  of  a  proper  acknowledg- 
ment does  not  render  the  deed  absolutely  void,  for  it 

6  Miller  v.  Yturria,  69  Tex.  552,  7  S.  W.  206;  Webb  v.  Burney,  70 
Tex.  323,  7  S.  W.  841;  Adams  v.  Pardue  (Tex.  Civ,  App.),  36  S.  W. 
1017. 

7  Cole  V.  Bammel,  62  Tex.  112;  Davis  v.  Kennedy,  58  Tex.  516; 
Wiley  V.  Prince,  21  Tex.  637;  Miller  v.  Yturria,  69  Tex.  552,  7  S.  W. 
206.  Conclusive  in  the  absence  of  fraud:  Brand  v.  Col.  S.  Co.,  70 
S.  W.  578. 

8  Wheelock  v.  Cavitt,  91  Tex.  682,  66  Am.  St.  Eep.  920,  45  S.  W. 
796. 

9  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527. 


129  OF    MAEEIED    WOMEN.  §§  280-282 

may  be  corrected  in  several  ways.^^  A  deed  of  a  mar- 
ried woman  properly  acknowledged,  but  defectively 
certified,  would  be  void  as  to  vested  rights. ^^ 

§  280.  Wife's  Deed  not  Complete  Without  Certificate  of 
Acknowledgment. — A  deed  of  a  married  woman  is  not 
complete  without  the  certificate  of  acknowledgment, 
explanation,  privy  examination,  etc.,  as  prescribed  by 
the  statute.  Not  only  is  the  acknowledgment  required, 
but  also  the  certificate  of  it.*^ 

§  281.  Held,  Wife's  Deed  Void  Until  Certificate  Corrected. 
It  is  also  held  that  while  a  defective  certificate  of  a 
proper  acknowledgment  may  be  corrected  by  suit,  or  re- 
examination, until  it  is  corrected,  the  deed  is  void  even 
between  the  parties.^^  A  defective  acknowledgment 
shown  by  the  certificate  is,  of  course,  void.' ' 


14 


§  282.  Amendment, — A  certificate  may  be  amended 
by  the  officer  after  it  has  left  his  hands  without  a  re- 
examination, if  he  is  still  in  office  and  she  has  not  with- 
drawn her  consent/^  The  reverse  was  held  by  the 
court  of  civil  appeals  in  the  same  case.  It  is  held  that 
if  the  officer  taking  the  acknowledgment  of  a  married 
woman  is  still  in  office,  he  may  amend  his  certificate  by 
attaching  his  seal,  provided  she  has  not  in  the  meantime 
withdrawn  her  acknowledgment,  but  under  no  other  cir- 
cumstances.^® 

10  See  chapter  28. 

11  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  568. 

12  Looney  v.   Adamson,  48   Tex.   622;   Williams   v.   Ellinsworth,   75 
Tex.   480,    12   S.   W.    746. 

13  Starnes  v.  Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W.  203;  John- 
son V.  Taylor,  60  Tex.  361;  Kev.  Stats.  1895,  arts.  634,  635. 

14  Norton  v.  Davis,  83  Tex.  36,  18  S.  W.  430. 

15  Stone  V.  Sledge,  87  Tex.  54,  47  Am.  St.  Kep.  65,  26  S.  W.  1069. 

16  McKellar  v.  Peck,  39  Tex.  388.     See  post,  §§  992-997. 

9 


§§  283-286     CEETIFICATION  OF  ACKNOWLEDGMENTS.  130 

§  283.  Certificate  Proven,  How. — A  certificate  of  ac- 
knowledgment of  a  married  woman  is  part  of  the  deed 
and  may  be  shown  or  proven  in  the  same  manner  as  the 
rest  of  the  deed.-*^'' 

§  284.  Parol  Evidence. — But  parol  evidence  is  not  ad- 
missible to  show  official  character  of  the  officer  taking 
the  acknowledgment,  his  official  character  not  appear- 
ing on  the  face  of  the  instrument. ^^  Neither  is  parol 
evidence  admissible  to  show  that  a  deed  was  voluntarily 
executed  by  the  wife,  the  officer's  certificate  not  show- 
ing that  there  had  been  a  privy  examination  and  ac- 
knowledgment.^^ Nor  are  admissions  of  wife  admissi- 
ble to  show  conveyance  or  sale  of  her  property.^^ 

§  285.  Idem. — But  it  is  held  that  parol  testimony  is 
admissible  to  prove  that  the  seal  of  the  officer  was  un- 
designedly omitted.^^  And  it  was  held  that  parol  evi- 
dence was  admissible  to  prove  that  the  signature  to  the 
deed,  "J.  M.  W.,"  and  the  name  in  the  certificate  of  ac- 
knowledgment, "James  M.  W.,"  were  the  same  persons 
and  were  intended  for  "Jasper  M.  W."^^ 

§  286.  Porm  of  Certificate  of  Married  Woman's  Acknowl- 
edgment— The  form  and  substance  of  certificates  of  ac- 
knowledgments and  proof  are  controlled  by  the  statutes 
in  force  at  the  time  the  certificate  of  acknowledgment 
was  made.^^     If  a  certificate  is  invalid  at  the  time  it 

17  Simpson  v.  Edens,  14  Tex.  Civ.  App.  235,  38  S.  W.  474. 

18  Stone   V.   Sledge    (Tex.   Civ.   App.),   24   S.    W.    697;    Looney    v. 
Adamson,  48   Tex.  619. 

19  Stone  V.  Sledge  (Tex.  Civ.  App.),  24  S.  W.  697;  Looney  v. 
Adamson,  48  Tex.  619. 

20  Bailey  v.  Trammel!,  27  Tex.  328.     See  ante,  §§  174-181. 

21  Nichols  V.  Stewart,  15  Tex.  235;  and  see  Nichols  v.  Gordon,  25 
Tex.   Supp.   112. 

22  Cheek  v.  Herndon,  82  Tex.  148,  17  S.  W.  763.  See  "Parol  Evi- 
dence," ante,  §§  174-190. 

23  Eev.  Stats.  1895,  art.  4661.  See  the  statutory  provisions,  §§ 
325-348. 


131  OF  MAEEIED  WOMEN.  §§  287-290 

is  made,  subsequent  laws  adopting  the  form  used  will 
not  cure  it.^* 

§  287.  Substantial  Compliance  with  Statute  Necessary. — 
While  our  statutes,  except  the  earlier  ones,  provide 
forms  to  be  used  for  certificates,  they  are  not  essential 
to  valid  certificates  if  they  contain  all  that  is  necessary 
to  show  a  valid  acknowledgment.  No  material  fact 
should  be  omitted,  but  a  substantial  compliance  with 
the  statute  is  sufficient.^^ 

§  288.  May  be  Invalid  as  to  Husband  but  Valid  as  to 
Wife. — A  certificate  may  be  invalid  as  to  husband  but 
valid  as  to  wife.  For  instance,  a  certificate  in  the  fol- 
lowing form:  "Before  me,  the  undersigned  authority, 
personally  appeared  E.  and  E.,  his  wife,  who  are  to  me 

made  known,  and  acknowledged   that signed, 

executed  and  delivered  the  foregoing  deed,"  etc.,  fol- 
lowed by  the  wife's  acknowledgment  in  statutory  form, 
though  defective  as  to  the  husband,  because  it  failed  to 
show  that  he  signed,  executed  and  delivered  the  deed,  is 
good  as  to  the  wife,  and  entitles  the  deed  to  be  re- 
corded.^® 

§  289.  Must  Certify  What.— The  certificate  must  state 
all  that  is  necessary  to  show  a  valid  acknowledgment.^'' 
The  essentials  to  be  stated  are  shown  in  the  following 
sections . 

§  290.  Separate  and  Privy  Examination. — The  certifi- 
cate must  show  separate  examination  of  the  married 
woman  or  it  is  insufficient.^*     But  prior  to  the  act  of 

24  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

25  Deen  v.  Wills,  21  Tex.  646;  Monroe  v.  Arledge,  23  Tex.  480; 
Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Rep.  267;  Talbert  v.  Dull,  70 
Tex.  675,  8  S.  W.  530;  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S. 
W.  1057.     See  Livingston  v.  Kettelle,  41  Am.  Dec.  179,  note. 

26  Kork  v.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032. 

27  Looney  v.  Adamson,  48  Tex.  622. 

28  Berry  v.  Donley,  26  Tex.  737;  Minor  v.  Powers  (Tex.  Civ.  App.), 


§§  297-299     CERTIFICATION  OF  ACKNOWLEDGMENTS.  134 

C  D.     And  the  recitation  that  he  explained  the  deed  is 
equivalent  to  saying  that  he  fully  explained  it.^® 

§  297.  Certificate  not  Defective  for  Failing  to  Show  that 
Deed  was  Shown  to  Wife. — It  is  not  necessary  for  a  valid 
conveyance  by  a  married  woman  that  an  ofl&cer  taking 
the  acknowledgment  show  by  his  certificate  that  the  in- 
strument was  shown  to  her.  Article  4620  of  the  Re- 
vised Statutes  of  1895  prescribes  a  sufficient  form  of 
certificate.^^ 

§  298.  Free  from  Compulsion. — The  certificate  must 
show  that  the  married  woman  signed  the  deed  willingly, 
and  if  it  does  not,  it  is  a  nullity.'**^ 

§  299.  "Free"  Instead  of  "Willingly." — The  use  of  the 
word  "free"  act,  and  the  omission  of  the  words  "will- 
ingly signed  the  same,"  in  the  certificate  is  not  fatal.*^ 
The  recitation  that  "she  declared  that  exe- 
cuted the  same  freely  and  with  constraint  on  the  part 
of  her  said  husband  and  that  she  did  not  wish  to  re- 
tract the  same,"  sufficiently  shows  that  she  did  it  will- 
ingly, as  it  is  clear  that  writing  the  w^ord  "with"  instead 
of  "without"  is  a  clerical  error,  and  that  notwithstand- 
ing the  omission  of  "she"  before  "executed,"  the  certifi- 
cate as  a  whole  sufficiently  shows  that  she  acknowl- 
edged the  execution  thereof.^ 

38  Clark  V.  Groce,  16  Tex.  Civ.  App.  453,  41  S.  W.  668;  Johnson. 
V.  Thompson   (Tex.  Civ.  App.),  50  S.  W.  1057. 

39  Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Bep.  267;  Brenneman 
V.  Mayer,  24  Tex.  Civ.  App.  164,  58  S.  W.  725.  See  Livingston  v. 
Kettelle,  41  Am.  Dec.  182. 

40  Smith  v.  Elliott,  39  Tex.  209;  Belcher  v.  Weaver,  46  Tex.  293, 
26  Am.  Eep.  267;  Davis  v.  McCartney,  64  Tex.  585;  McNulty  v.  Elli- 
son (Tex.  Civ.  App.),  71  S.  W.  670;  Tiemann  v.  Cobb  (Tex.  Civ.  App.), 

80  S.  W.  250. 

41  Wilson  V.  Simpson,  80  Tex.  281,  16  S.  W.  40;  Thompson  v.  John- 
son, 92  Tex.  360,  51  S.  W.  23;  Eork  v.  Shields,  16  Tex.  Civ.  App,, 
640,  42  S.  W.  1032. 

42  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S.  W.  1057.  See 
ante,  §  257,  and  also  Livingston  v.  Kettelle,  41  Am.  Dec.  181,  note. 


135  OF   MAREIED    WOMEN.  §§  300-303 

§  300.  "Retract." — The  certificate  must  show  that  at 
the  time  of  the  acknowledgment,  the  married  woman 
declared  that  she  did  not  wish  to  retract  it.*^  Al- 
though the  certificate  fails  to  certify  that  the  wife  "did 
not  wish  to  retract  it,"  yet  if  an  equivalent  expression 
is  used  it  will  be  sufflcient.'*^  The  omission  of  the 
word  "it"  in  the  expression  "she  did  not  wish  to  re- 
tract it"  is  immaterial."*^  Statement  that  she  "con- 
sented that  the  same  be  recorded"  was  substantially 
equivalent  to  the  statement  that  she  did  not  wish  to  re- 
tract it.^« 

§  301.  ''Known  to  Me." — Previous  to  the  adoption  of 
the  Revised  Statutes  of  1879  it  was  not  necessary  for 
the  certificate  to  show  that  the  grantor  was  known  to 
the  officer,  but  since  the  adoption  of  this  statute  the 
certificate  must  show  that  the  grantor  was  known  to 
the  officer,  or  it  would  be  invalid.^'' 

§  302.  Acknowledgment  Must  be  Personal  to  Officer. — It 
must  certify  that  the  grantor  acknowledged  to  the  of- 
ficer the  execution  of  the  instrument.'** 

§  303.  Idem. — The  recitation  in  the  certificate  that 
"this  day  before  me,  F  G,  notary  public,  came  A  B  and 

43  Davis  V.  Agnew,  67  Tex.  210,  2  S.  W.  43,  376;  Freeman  v.  Pres- 
ton (Tex.  Civ.  App.),  28  S.  W.  495;  Murphy  v.  Eenaud,  2  Tex.  Civ. 
App.  470,  21  S.  W.  991;  King  v.  Haley,  75  Tex.  169,  12  S.  W.  1112; 
Hayden  v.  Moffatt,  74  Tex.  150,  15  Am.  St.  Rep.  866,  12  S.  W.  820. 

44  Adams  v.  Pardue  (Tex.  Civ.  App.),  36  S.  W.  1018. 

45  Moores  v.  Linney,  2  Tex.  Civ.  App.  293,  21  S.  W.  709;  Mont- 
gomery V.  Hornberger,  16  Tex.  Civ.  App.  28,  40  S.  W.  628;  Estes  v. 
Turner,  30  Tex.  Civ.  App.  365,  70  S.  W.  1009.  See  ante,  §  257,  and 
Livingston  v.  Kettelle,  41  Am.  Dec.  183,  note. 

46  Masterson  v.  Harris   (Tex.  Civ.   App.),  83  S.  W.  429. 

47  Davidson  v.  Wallingsford,  88  Tex.  623,  32  S.  W.  1030;  Hurst 
v.  Finley,  22  Tex.  Civ.  App.  605,  55  S.  W.  388;  Sowers  v.  Peterson, 
59  Tex.  219;  McNuIty  v.  Ellison  (Tex.  Civ.  App.),  71  S.  W.  670;  ante, 
§§   139-146,  257,  268,  269. 

48  See   ante,    §§    154-156. 


§§  304-307     CERTIFICATION  OF  ACKNOWLEDGMENTS.  136 

C  D,  to  me  well  known,  and  acknowledged  that  they 
signed  the  foregoino-  deed,"  etc.,  fairly  shows  that  they 
acknowledged  the  same  to  the  officer.  And  the  recita- 
tion that  "C  D,  wife  of  A  B,  being  examined  privily 
and  apart  from  her  husband,  and  after  having  said  deed 
fully  explained  to  her,"  etc.,  will  be  construed  to  mean 
that  the  examination  was  conducted  by  the  officer  and 
that  he  explained  the  deed  to  her.*** 

§  304.  Official  Character  Must  be  Shown. — The  official 
character  of  the  officer  must  be  shown  in  the  certificate, 
or  appended  to  his  signature,  or  shown  by  the  seal,  but 
they  may  be  aided  by  reference  to  the  deed.^ 


50 


§  305.     Official    Seal.— The    official    seal    must    be    at- 
tached.^^ 


§  306.  Signature  of  Officer. — The  signature  of  the  of- 
ficer must  be  appended. ^^ 

§  307.  Certain  Omissions  Immaterial. — But  it  seems  that 
the  omission  of  the  venue,^^  the  date,^*  the  words  "pur- 
poses and  considerations,"^^  the  reference  to  the  seal,^^ 
and  certain  other  words,  as  will  be  seen  under  the  head 
of  "omissions,"  will  not  invalidate  the  certificate.  If 
the  certificate  certifies  that  the  officer  affixed  his  seal, 
the  presumption  is  that  he  did  affix  it,  even  though  the 
record  or  a  certified  copy  of  it  fails  to  show  the  char- 
acters usually  used  to  represent  the  seal. 


57 


4'9  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S.  W.  1057. 

50  See  ante,  §  133. 

51  See   chapter   13. 

52  See   ante,    §    132. 

53  See  ante,  §  130. 

54  See  ante,  §  131. 

55  See  ante,  §   172. 

56  See  post,  §  488. 

57  Coffey  V.  Hendricks,  66  Tex.  677,  2  S.  W.  47;  V^itt  v.  Harlam, 
66  Tex.  660,  2  S.  W.  41;  Ballard  v.  Perry,  28  Tex.  347. 


137  OF  MABEIED  WOMEN.  §§  308-310 

§  308.  Identity  of  Grantor  and  Person  Acknowledging 
Deed. — Their  identity  must  appear  with  reasonable  cer- 
tainty from  the  certificate  and  deed.^* 

§  309.  Omissions  and  Errors. ^^ — Immaterial  omissions 
are  not  fatal.  For  instance,  the  omission  of  "it"  in  the 
closing  clause  of  the  certificate  "she  did  not  wish  to  re- 
tract it"  is  not  fatal,®^  nor  under  the  act  of  April  30, 
1846,  is  the  omission  of  the  words  "freely"  and  "seal" 
from  the  certificate,  nor  the  use  of  "signed"  for  "exe- 
cuted," nor  the  words  "and  deed"  in  connection  with 
"her  act  and  deed,"  nor  the  words  "delivered"  and 
"shown  to  her,"  nor  the  use  of  the  word  "contract"  for 
"retract" ;  nor  is  the  use  of  the  expression  "without  any 
bribe,  threat  or  compulsion"  fatal.*^^  Nor  is  the  omis- 
sion of  the  words  "sealed  and  delivered"  fatal. *^^  Nor 
is  the  use  of  the  words  "free  act,"  and  the  omission  of 
words  "willingly  signed  the  same"  fatal. *^  Nor  is  the 
use  of  "separate"  instead  of  "privily,"  it  being  cured 
by  the  act  of  July  28,  1876.^^ 

§  310.  Error  Clearly  Clerical  not  Fatal. — Where  it  ap- 
pears from  the  certificate  as  a  whole  that  the  officer  in- 
tended to  write  the  proper  word  and  its  omission  was  a 
clerical  error,  the  certificate  is  not  vitiated  by  such 
error.^  So  where  the  statute  had  evidently  been  com- 
plied with,  writing  "with"  for  "without"  in  such  cer- 
tificate, is  immaterial.®^     Also  is  "assigned"  instead  of 

58  See   ante,   §§    147-153. 

59  See  ante,  §§   171-173. 

60  Moores  v.  Linney,  2  Tex.   Civ.   App.   294,   21  S.  W.   709;   Mont- 
gomery V.  Hornberger,  16  Tex.  Civ.  App.  28,  40  S.  W.  628. 

61  Belcher  v.  Weaver,  46  Tex.  295,  26  Am.  Eep.  267. 

62  Mullens  v.   Weaver,   57   Tex.   5. 

63  Wilson  V.  Simpson,  80  Tex.  281,  16  S.  W.  40. 

64  McDannell  v.  Harrell,  1  U.  C.  526. 

65  Durst  V.  Dougherty,  81  Tex.  650,  17  H.  W.  388. 

66  Durst  V.   Dougherty,  81   Tex.   650,   17   S.   W.   388. 


§§311,312     CERTIFICATION  OF  ACKNOWLEDGMENTS.  138 

"signed"  imiiiaterial.*^'  Under  article  4313  of  the  Re- 
vised Statutes  of  1879,  wliere  the  certificate  omitted  to 
state  that  she  had  acknowledged  the  instrument  "to  be 
her  act  and  deed,"  but  showed  that  she  had  willingly' 
signed  it  and  "wished  not  to  retract  it,"  it  was  held 
sufficient.****  The  omission  of  "her"  before  "act  and 
deed"  is  not  fatal,  and  the  insertion  of  a  name  ont  of 
place  in  the  certificate  may  be  treated  as  surplusage.^^ 
The  use  of  "separate  and  apart"  is  equivalent  to 
"privily,"''^  and  "she  voluntary  assents  thereto"  is 
equivalent  to  "she  did  not  wish  to  retract  it 


JJ71 


§  311.  Material  Omissions  Fatal. — But  the  omission  of 
"explained"  in  the  expression  "having  been  fully  ex- 
plained to  her,"  is  fatal.''^  And  the  omission  of 
"signed"  in  the  expression  "signed,  sealed  and  de- 
livered" is  fatal.''^  And  where  there  are  several  gran- 
tors of  both  sexes  recited  in  the  certificate,  and  it  recites 
that  "he"  acknow^ledged  that  "he"  executed  the  same, 
etc.,  it  is  fatally  defective. '^'^ 

§  312.  Equivalent  Expressions.''^ — In  a  married  wom- 
an's cerliificate  of  acknowledgment  the  use  of  "contract" 
for  "retract"  and  without  any  "bribe,  threat  or  compul- 
sion" is  not  fatal.''^  Equivalent  words  may  be  used, 
such  as  "executed"  for  "subscribed."^''  And  the  use  of 
"separately"  instead  of  "privily"  is  sufficient.'"* 

67  Broussard  v.  Dull,  3  Tex.  Civ.  App.  59,  21  S.  W.  937. 

68  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 

69  Gray  v.  Kaufman,  82  Tex.   69,  17   S.  W.   513. 

70  Coombes  v.   Thomas,  57  Tex.  321. 

71  Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  430. 

72  Moores  v.  Linney,  2  Tex.  Civ.  App.  294,  21  S.  W.  709;  Jones  v. 
Robins,  74  Tex.  618,  15  S.  W.  824. 

73  Smith  v.  Elliott,  39  Tex.  209. 

7  4  Threadgill  v.  Bickerstaff,  7  Tex.  Civ.  App.  406,  26  S.  W.  741. 
75  See  ante,  §§  157-163. 

76  Belcher  v.  Weaver,  46  Tex.  295,  26  Am.  Eep.  267. 

77  Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  430;  Dorn  v.  Best,  15 
Tex.  62;  Wilson  v.  Simpson,  80  Tex.  279,  16  S.  W.  40. 

78  stringer  v.  Swenson,  63  Tex.  7. 


139  OF  MAERIED  WOMEN.  §§  313-316 

§  313.  Estoppel  and  Equities. — A  defect  in  a  married 
woman's  deed  by  reason  of  a  defective  acknowledgment 
may  be  waived  by  ber.''^  And  where  a  husband  and 
wife  appear  in  probate  court  and  ask  that  a  tract  of 
land  be  sold  to  satisfy  balance  of  purchase  money  due 
on  land  for  title,  and  the  sale  is  made  in  accordance 
with  their  application,  they  will  thereafter  be  estopped 
from  setting  up  that  the  bond  for  title  was  void  as  to 
the  wife  on  account  of  her  acknowledgment  being  de- 
fective.^® 

§  314.  In  Case  of  Partition. — Where  a  married  woman 
in  a  partition  deed  not  properl}^  acknowledged  by  her, 
accepted  the  portion  allotted  to  her,  and  afterward  sells 
it  to  one  not  a  party  to  the  deed  of  partition,  she  and 
those  claiming  under  her  are  estopped  to  assail  the  par- 
tition.**^ 

§  315.  Where  Wife's  Land  is  Released. — While  it  is  well 
settled  that  to  pass  the  title  of  a  married  woman  in 
the  sale  of  her  land  it  must  be  done  in  the  mode  pre- 
scribed by  the  statute,  this  does  not  preclude  equities 
being  adjusted  and  enforced.  The  law  will  not  permit 
a  married  woman  to  avail  herself  of  a  defective  certifi- 
cate of  acknowledgment  to  her  deed  when  such  deed  has 
served  the  purpose  of  releasing  her  land  from  other 
liens.*^ 

§  316.  Where  Fraud  is  Practiced  by  Wife. — Receiving 
all  the  benefits  of  a  sale  by  a  married  woman  and  never 
objecting  to  improvements  being  made  by  the  purchaser 
does  not  estop  her  or  her  heirs  from  claiming  land  on 
account  of  her  acknowledgment  being  defective,  but  a 

79  Cole  V.  Bammel,  62  Tex.   117. 

80  Dalton  v.  Eust,  22  Tex.   151. 

81  Talkin  v.  Anderson  (Tex.),  17  S.  W.  361;  and  see  Wardlow  v. 
Miller,  69  Tex.  397,  67  S.  W.  292;  Aycock  v.  Kimbrough,  71  Tex,  333, 
10  Am.  St.  Rep.  745,  12  S.  W.  71;  Ryan  v.  Maxey,  43  Tex.  192. 

82  McKinney  v.  Matthews   (Tex.),  6  S.  W.  795. 


§§  317-319     CERTIFICATION  OF  ACKNOWLEDGMENTS.  140 

fraud  practiced  by  her  which  is  relied  on  and  acted 
upon  by  the  purchaser  would  estop  her.^"'*  As  claiming 
that  the  land  belonged  to  her  husband.^* 

§  317.  Not  Estopped  Simply  Because  She  Received  the 
Benefits. — Where  a  mortgage  given  by  a  husband  and 
wife  to  a  building  and  loan  association  to  secure  a  loan 
made  by  said  association  for  the  erection  of  improve- 
ments on  their  homestead  was  acknowledged  before  an 
oflflcer,  who  was  a  stockholder  or  interested  party,  and 
although  the  husband  and  wife  received  the  money  and 
erected  the  improvements,  they  are  not  estopped  from 
setting  up  the  defense  of  the  failure  of  her  acknowledg- 
ment.^ 

§  318.  Defective  Certificate  of  Valid  Acknowledgment. — 
While  a  deed  of  a  married  woman  properly  acknowl- 
edged, but  defectively  certified,  will  not  pass  title,  it 
does  not  follow  that  it  is  absolutely  void.^^ 

§  319.  Conclusiveness  of  Certificate  of  Wife's  Acknowl- 
edgment.^''— A  certificate  of  acknowledgment  of  a  mar- 
ried woman  cannot  be  impeached,  and  is  conclusive  of 
the  facts  therein  stated  where  the  conduct  of  the  grantee 
is  in  good  faith  and  he  pays  a  valuable  and  adequate 
consideration  for  the  land;**  and  a  pre-existing  deed  is 
such  valuable  consideration  as  will  sustain  the  deed.*^ 
The  doctrine  is  well  settled  that  a  grantor  cannot  de- 

83  Fitzgerald  v.  Turner,  43  Tex.  84;   Stone  v.  Sledge,  87  Tex.  49, 
47  Am.  St.  Eep.  65,  26  S.  W.  1069. 

84  Berry  v.  Donley,  26  Tex.  746;  Cravens  v.  Booth,  8  Tex.  243,  58 
Am.  Dec.  112. 

85  Bexar  Bldg.  etc.  Assn.  v.  Heady,  21   Tex.  Civ.  App.  154,  50  S. 
W.  1081,  57  S.  W.  583. 

86  Johnson   v.   Taylor,   60   Tex.   365;   Womack   v.   Womack,   8   Tex. 
397,  58  Am.  Dec.  119. 

87  See  ante,  §  211. 

88  Waltee  v.  Weaver,  57   Tex.  569;   Davis  v.  Agnew,  67  Tex.  210, 
2  S.  W.  43,  376;  Stallings  v.  Hiillum,  79  Tex.  421,  16  S.  W.  677. 

89  Webb  V.  Burney,  70  Tex.  325,  7  S.  W.  841;  Freiberg  v.  De  La- 
mar, 7  Tex.  Civ.  App.  263,  27  S.  W.  151. 


141  OF   MAEEIED   WOMEN.  §§  320,    321 

feat  her  deed  by  claiming  that  she  was  misinformed  by 
the  interpreter  that  the  deed  was  a  mortgage,  as  the 
certificate  of  acknowledgment  would  be  conclusive  un- 
less fraud  was  shown  on  the  part  of  the  gi'antee.®^  The 
wife  cannot  defeat  her  deed  by  showing  that  she  did 
not  understand  its  import  unless  grantee  knew  it  was 
not  understood.^^  The  certificate  of  the  wife's  acknowl- 
edgment is  conclusive  in  the  absence  of  fraud  between 
the  parties  thereto,^^  and  the  grantee  must  be  a  party 
to  the  fraud  or  it  is  not  available.^^  The  grantee  must 
have  knowledge  of  the  fraud,  mistake  or  imposition, 
or  the  circumstances  must  have  been  such  as  would 
have  impelled  him  to  inquiry  which  he  neglected;®* 
that  is,  in  case  the  grantee  paid  a  valuable  consider- 
ation.®^ 

^  320.  Same  Strictness  does  not  Apply  to  Wife's  as  to  Hus- 
band's.— But  it  is  held  that  the  same  strictness  as  to 
what  would  constitute  legal  duress  or  imposition  on 
the  part  of  the  husband  in  ordinary  conveyances  does 
not  apply  against  the  wife  by  reason  of  their  peculiar 
relationship.  Threat  of  separation  or  taking  the  chil- 
dren is  sufiicient.®^ 

§  321.  Cannot  Show  Want  of  Capacity  in  Officer,  etc. — 
If  it  appear  regular  on  its  face  and  from  the  instrument 
attached,  parol  evidence  is  inadmissible  to  show  want  of 
capacit}^  in  the  officer  making  the  certificate,  or  that 

00  Herring  v.  White,  6  Tex.  Civ.  App.  249,  25  S.  W.  1017,  and 
cases  cited;  Summers  v.  Shearn  (Tex.  Civ.  App.),  37  S.  W.  246; 
Grey  v.  Shelby,  83  Tex.  407,  18  S.  W.  809;  Atkinson  v.  Keed  (Tex. 
Civ.  App.),  49  S.  W.  262. 

01  Miller  v.  Yturria,  69  Tex.  553,  7  S.  W.  206. 

92  Hartley  v.  Frosh,  6  Tex.  208,  55  Am.  Dec.  772;  Adams  v.  Par- 
due    (Tex.   Civ.   App.),   36    S.   W.    10-17. 

93  Shelby  v.  Burtis,  18  Tex.  645;  Henderson  v.  Terry,  62  Tex.  282. 
84  Wiley  V.  Prince,  21  Tex.  637;  Pool  v.  Chase,  46  Tex.  207;  Pierce 

V.  Fort,  60  Tex.  464. 

95  Williams  v.  Pounds,  48  Tex.  141;  Davis  v.  Kennedy,  58  Tex. 
517. 

96  Kocourck  v.  Marak,  54  Tex.  205,  33  Am.  Rep.  623. 


§§  322,  323     CERTIFICATION  OF  ACKNOWLEDGMENTS.  142 

he  was  not  acting  within  the  sphere  of  his  duty,^''  or 
that  he  was  acting  without  his  jurisdiction,  or  in  the 
wrong  county,®*  or  that  the  acknowledgment  was  im- 
properly taken.^ 

§  322.  Officer  cannot  Explain  Certificate,  but  may  Prove 
Acknowledgment  Properly  Taken. — It  is  error  to  allow  an 
ojBacer  taking  an  acknowledgment  to  explain  his  mis- 
take or  vary  his  certificate.*^*^  But  such  officer  is  a 
competent  witness  to  prove  that  it  was  properly  taken 
where  suit  was  brought  for  the  correction  of  the  certifi- 
cate.*^* The  notary's  testimony  is  admissible  to  prove 
the  execution  of  the  deed,  but  not  to  cure  the  certificate 
where  the  seal  had  been  omitted,  so  as  to  validate  the 
registration.*^^  This  was  before  the  statute  of  1879 
providing  for  the  correction  of  certificates  by  action.***^ 

§  323.  May  be  Avoided  by  Her  When. — A  married 
woman's  deed  may  have  the  proper  certificate  of  ac- 
knowledgment and  yet  be  avoided  by  her,  if  she  did  not 
attempt  to  acknowledge  it;***'*  or  if  the  certificate  does 
not  speak  the  truth,  or  the  deed  or  acknowledgment  was 
obtained  by  fraud  or  force,  provided  that  the  purchaser 
is  charged  with  notice  of  these  facts  before  the  pur- 
chase money  is  paid.***^  Where  she  is  deceived  as  to 
the  amount  of  the  consideration  received  by  placing 
a  larger  amount  in  the  deed,  such  deed  would  pass  no 

97  Titus  V.  Johnson,  50   Tex.   240. 

98  Peterson  v.  Lowry,  48  Tex.  412. 

99  Forbes  v.  Thomas  (Tex.  Civ.  App.),  51  S.  W.  1097;  Hurst  v. 
Finley  (Tex.  Civ.  App.),  54  S.  W.  1072.  This  last-mentioned  case 
was  reversed  on  other  grounds  in  22  Tex.  Civ.  App.  605,  55  S.  W.  388. 

100  McKellar  v.  Peck,  39   Tex.   382. 

101  Norton  v.  Davis,  83  Tex.  36,  18  S.  W.  430. 

102  King  V.  Eussell,  40  Tex.  130. 

103  Post,  §  998. 

104  Breitling   v.    Chester,    88    Tex.    589,   32    S.   W.    527. 

105  Cole  V.  Bammell,  62  Tex.  112;  Davis  v.  Kennedy,  58  Tex.  516; 
Wiley  v.  Prince,  21  Tex.  637;  Miller  v.  Yturria,  69  Tex.  552,  7  S. 
W.  206. 


143 


OF  MAEEIED  WOMEN.  §§  324,  325 


title.***^  She  cannot  defeat  her  deed  by  showing  that 
she  did  not  understand  its  contents  unless  she  also 
shows  that  this  fact  was  known  to  the  grantee. 


107 


§  324.  Presumption  is  that  Certificate  Recites  the  Facts. — 
The  presumption  is  that  the  certificate  recites  what 
transpired  between  the  oflflcer  and  the  married  woman 
at  the  time  such  acknowledgment  was  taken. ^^®  But, 
of  course,  this  presumption  would  be  disputable;  for 
instance,  where  she  never  attempted  to  acknowledge 
the  deed,  etc.^**^ 

B.     STATUTOEY    PEOVISIONS    CONCEENING    ACKNOWLEDG- 
MEXTS  OF  MAEEIED  WOMEN. 

§  325.  Act  of  February  3,  1841— Requirements  and  Form. 
The  first  act  providing  a  means  for  the  conveyance  of 
the  wife's  separate  property  after  the  adoption  of  the 
common  law  was  the  act  of  February  3,  1841  (taking 
effect  from  passage),*^^  to  wit:  "H.  D.,  art.  173: 
"Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  Republic  of  Texas,  in  Congress  assembled, 
that  from  and  after  the  passage  or  approval  of  this  act, 
when  a  husband  and  his  wife  have  sealed  and  delivered 
a  writing  purporting  to  be  a  conveyance  of  any  estate, 
or  interest  in  any  land,  slave  or  slaves,  or  other  effects, 
the  separate  property  of  the  wife,  if  she  appear  before 
any  judge  of  the  district  court,  or  chief  justice  of  the 
county  court,  and  being  examined  privily  and  apart 
from  her  husband,  shall  declare  that  she  did  freely  and 
willingly  seal  and  deliver  the  said  writing  (to  be  then 
shown  and  explained  to  her),  and  wishes  not  to  retract 

106  Cole   V.   Bammell,   62   Tex.   108. 

107  Webb  V.  Burney,  70  Tex.  323,  7  S.  W.  841;  Adams  v.  Pardue 
(Tex.  Civ.  App.),  36  S.  W.  1017. 

108  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50  S.  W.  1057;  Clark 
V.  Groce,  16  Tex.  Civ.  App.  453,  41  S.  W.  669;  Coombes  v.  Thomas, 
57   Tex.   322. 

109  Ante,    §    323. 

110  2  L.  T.  608. 


326 


CEKTIFICATION  OF  ACKNOWLEDGMENTS.  144 


it,  and  shall  acknowledge  the  said  writing  so  again 
shown  to  her,  to  be  her  act;  such  privy  examination, 
acknowledgment  and  declaration  the  said  judge  or  chief 
justice  shall  certify  under  his  hand  and  seal  by  a  cer- 
tificate annexed  to  said  writing,  and  to  the  following 
effect,  or  substance  thereof,  that  is  to  say: 

"Republic  of  Texas,) 
County  of . ) 

I,  A.  B.,  chief  justice  of  the  county  aforesaid,  do 
hereby  certify  that  E  F,  the  wife  of  G  H,  parties  to 

a  certain  deed,  bearing  date  on  the day  of , 

and  hereunto  annexed,  personally  appeared  before  me, 
the  chief  justice  of  the  county  aforesaid,  and  having 
been  examined  by  me  privily  and  apart  from  her  hus- 
band, and  having  the  deed  aforesaid  fully  explained  to 
her,  she,  the  said  E  F,  acknowledged  the  same  to  be  her 
act  and  deed,  and  declared  that  she  had  willingly 
signed,  sealed  and  delivered  the  same,  and  that  she 
wished  not  to  retract  it. 

"Given  under  my  hand  and  seal,  this  day  of 


"— .     [Seal] 

"But  any  certificate  showing  that  the  requisitions 
of  the  law  have  been  complied  with,  shall  be  as  valid 
as  the  form  here  prescribed ;  and  such  conveyance  shall 
pass  all  the  right,  title  and  interest  which  the  husband 
and  wife,  or  either  of  them,  may  have  in  or  to  the  prop- 
erty therein  conveyed." 

§  326.  Idem — Annotated. — This  act  remained  in  force 
until  June  22,  1846.  It  was  a  substitute  for  the  method 
of  conveying  wife's  property  by  the  common-law  method 
of  fine  and  recovery.**^  Under  the  above  act  the  sale 
of  the  wife's  personal  property  was  not  necessarily  re- 
quired to  be  in  writing  and  acknowledged  by  her.^^^ 

111  Langton  v.  Marshall,  59  Tex.  299;  Grosbeck  v.  Bodman,  73 
Tex.  292,  11  S.  W.  322. 

112  Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  74,  34  S.  W.  369. 


145  OF    MAEEIED    WOMEN.  §§  327-329 

But  her  deed  not  in  compliance  with  this  act  conveyed 
neither  legal  nor  equitable  title.^*^  It  provided  the 
only  method  in  which  a  married  woman  could  convey 
her  real  estate.*^* 

§  327.  Act  of  February  5,  1841— Validates  Want  of  Au- 
thority in  Certain  Officers. — The  validating  statute  of  Feb- 
ruary 5,  1841,  validates  the  want  of  authority  of  chief 
justices  and  clerks  of  the  county  court  and  notaries  pub- 
lic in  certain  cases.  It  is  very  questionable  if  this 
would  cure  such  want  of  authority  in  officers  taking  ac- 
knowledgments of  married  women.*^^ 

§  328.  Act  of  April  29,  1846— Acknowledgment  of  Sched- 
ule of  Wife's  Property.— The  act  of  April  29,  1846  (tak- 
ing effect  June  22,  1816),"*^  authorized  any  officers  qual- 
ified to  probate  deeds,  to  take  the  acknowledgments  of 
married  women  to  the  schedule  of  her  separate  prop- 
erty, and  give  a  certificate  of  the  facts  under  his  hand 
and  seal  of  office,  which  certificate  shall  be  sufficient 
evidence  for  the  recorder  of  any  county  to  register  said 
schedule.**'' 

ACT    OF    APEIL    30,    1846    (TOOK    EFFECT    JUNE    22,    1846).ll8 

§  329.  Requirements  and  Form.- -H.  D.,  art.  174:  "Be 
it  enacted  by  the  legislature  of  the  state  of  Texas 
that  when  a  husband  and  his  wife  have  sigiied  and 
sealed  any  deed  or  other  writing  purporting  to  be  a  con- 
veyance of  any  estate  or  interest  in  any  land,  slave  or 
slaves,  or  other  effects,  the  separate  property  of  the 

113  Berry  v.  Donley,  26  Tex.  737;  .Tohnson  v.  Taylor,  60  Tex. 
361;  Williams  v.  Ellensworth,  75  Tex.  482,  12  S.  W.  746;  Angier 
V.  Coward,  79  Tex.  5.54,  15  S.  W.  698.  But  see  Tucker  v.  Carr,  39 
Tex.   98. 

114  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  R.  A. 
779;  Cole  v.  Bammel,  62  Tex.  111. 

115  Post,   §§    1006,    1007,    1018-1021. 
lie  2  L.  T.  1459. 

117  Ante,  §  273a. 

118  2   L.   T.    1462. 

10 


§  330  CERTIFICATION  OF  ACKNOWLEDGMENTS.  146 

wife,  or  of  the  homestead  of  the  family,  or  other  prop- 
erty exempted  by  laAV  from  execution,  if  tlie  wife  ap- 
pear before  any  jiidoe  of  the  supreme  or  district  court 
or  notary  public,  and  being  privily  examined  by  such 
ofl&cer,  apart  from  her  husband,  shall  declare  that  she 
did  freely  and  willingly  sign  and  seal  the  said  writing, 
to  be  then  shown  and  explained  to  her,  and  wishes  not 
to  retract  it,  and  shall  acknowledge  the  said  deed  or 
writing,  so  again  shown  to  her  to  be  her  act,  thereupon 
such  judge  or  notary  shall  certify  such  privy  examina- 
tion, acknowledgment  and  declaration,  under  his  hand 
and  seal,  by  a  certificate  annexed  to  said  writing  to  the 
following  effect  or  substance,  viz. : 

"State  of  Texas, 
County  of 

"Before  me,  judge  of,  or    notary    public  of 

county,  personally  appeared ' ,  wife  of 

parties  to  a  certain  deed  or  writing  bearing  date  on  the 

— ■ — ^day  of ;  and  hereto  annexed,  and  having  been 

examined  by  me  privily  and  apart  from  her  husband  and 
having  the  same  fully  explained  to  her,  she,  the  said 

,  acknowledged  the  same  to  be  her  act  and  deed, 

and  declared  that  she  had  willingly  signed,  sealed  and 
delivered  the  same,  and  that  she  wished  not  to  retract  it ; 
to  certify  which,  I  hereto  sign  my  name  and  affix  my 
seal,  this day  of ,  A.  D. . 

"But  any  certificate  showing  that  the  requisites  of  the 
law  have  been  complied  with  shall  be  as  valid  as  the 
form  here  prescribed;  and  such  deed  or  conveyance,  so 
certified,  shall  pass  all  the  right,  title  and  interest  which 
the  husband  and  wife,  or  either  of  them,  may  have  in 
or  to  the  property  therein  conveyed." 

§  330.  Idem — Annotated. — This  form  of  acknowledg- 
ment and  conveyance  remained  in  force  until  the  adop- 
tion of  the  Revised  Statutes  of  1879,  September  1st.**® 

119  Ballard  v.  Carmichael,  83  Tex.  362,  18  S.  W.  734;  Thompson  v. 
Johnson,  84  Tex.  548,  19  S.  W.  784. 


147  OF  MAEEIED  WOMEN.  §  331 

Under  this  act  it  was  not  necessary  for  the  certificate 
to  show  that  the  instrument  was  shown  to  the  married 
woman. ^^**  The  wife  could  transfer  her  personal  prop- 
erty except  slaves  without  separate  acknowledg- 
ments/^^ but  her  conveyance  in  writing-  must  be  ac- 
knowledged.*^^ Without  it,  her  deed  is  void.*^^  Re- 
ceipt of  benefit  from  proceeds  would  not  estop  her  from 
recovering. -^^^  After  the  taking  effect  of  this  act  it 
prescribed  the  only  mode  in  which  a  married  woman 
can  convey  her  real  estate. *^^ 

§  331.  How  Taken  Without  the  State.i26_H.  D.,  art. 
175 :  "Be  it  further  enacted  that  when  a  husband  and 
wife  have  signed  and  sealed  any  deed,  of  the  character 
described  in  the  first  section  of  this  act,  out  of  this 
state,  but  within  the  United  States,  or  any  of  their  ter- 
ritories, if  the  wife  apj)ear  before  any  judge  of  a  court 
of  record  having  a  seal,  in  any  of  said  states  or  terri- 
tories, and  be  examined,  and  make  the  declarations  and 
acknowledgments  provided  for  in  said  section,  and  such 
judge  shall  make  a  certificate  thereof  in  the  manner 
provided  for  in  said  section,  and  attest  the  same  under 
his  hand  and  the  seal  of  his  court,  such  deed  shall  have 
the  same  force  and  effect  as  if  the  same  had  been  done 
in  this  state,  before  any  of  the  officers  named  in  said 
section ;  and  when  any  such  deed  shall  have  been  signed 
and  sealed  out  of  the  United  States,  such  examinations, 
declarations,   and  acknowledgments  may   be  taken   or 

120  Breneman  v.  Mayer  (Tex.  Civ.  App.),  58  S.  W.  725. 

121  Ballard  v.  Carmichael,  83  Tex.  355,  18  S,  W.  734. 

122  Ballard  v.  Carmichael,  83  Tex.  355,  18   S.  W.  734. 

123  Callahan  v.  Patterson,  4  Tex.  65,  51  Am.  Dee.  712;  Hampshire 
V.  Floyd,  39  Tex.  105;  Whetstone  v.  Coflfey,  48  Tex.  278;  Callahan  v. 
Houston,  78  Tex.  497,  14  S.  W.  1027;  Berry  v.  Donly,  26  Tex.  737; 
Gregory  v.  Van  Vleck,  21  Tex.  41. 

124  Fitzgerald  v.  Turner,  43  Tex.  79.  See  Johnson  v.  Taylor,  60 
Tex.   361. 

125  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  R.  A. 
779;   Cole  v.  Bammel,  62  Tex.  Ill, 

126  See  chapters  14,  18,  19. 


§§  332-336     CEETITICATION  OF  ACKNOWLEDGMENTS.  148 

made  before  any  public  minister,  charge  d'affaires,  or 
consul  of  the  United  States,  and  the  certificate  of  such 
minister,  chargxS  d'affaires,  or  consul,  in  the  manner 
and  form  provided  for  in  said  section,  and  attested  un- 
der their  hand  and  official  seal,  shall  have  the  same 
force  and  effect  as  if  such  examination,  declaration  and 
acknowledgment  had  been  taken  or  made  and  certified 
in  this  state,  before  any  of  the  officers  named  in  said 
first  section." 

§  332.  Above  Law  Applies  to  What  Property. — H.  D., 
art.  176 :  "Be  it  further  enacted  that  this  act  is  intended 
to  apply  to  the  property  mentioned  in  the  twenty-second 
section  of  the  seventh  article  of  the  constitution,  as 
well  as  to  the  property  owned  or  claimed  by  the  wife 
before  marriage,  and  that  acquired  afterward  by  pur- 
chase, gift,  devise  or  descent." 

§  333.  Repeals  Other  Laws. — H.  D.,  art.  177:  "Be  it 
further  enacted,  that  all  former  laws  and  parts  of  laws, 
concerning  the  mode  of  conveyance  of  property  in 
which  the  wife  has  an  interest,  be  and  the  same  are 
hereby  repealed." 

§  334.  Act  of  May  8,  1846 — Commissioners  of  Deeds. — 
The  act  of  May  8,  1816  (taking  effect  June  22,  1846),*^^ 
authorized  commissioners  of  deeds  of  the  United  States 
or  District  of  Columbia  to  take  the  acknowledgments 
of  married  women.  ^^* 

§  335.  Act  of  May  13,  1846— Notaries  Authorized.— The 
act  of  May  13,  1846  (taking  effect  June  22,  1846),*^^  au- 
thorized notaries  public  to  take  the  acknowledgments 
of  married  women,  but  did  not  affect  the  requirements 
or  form  of  certificate. 

§  336.     Act  of  May  12,  1846 — Form  and  Requirements  not 

127  2  L.   T.    1493. 

128  Also  see  chapter  14,  and  post,  §§   729-731. 

129  2  L.  T.  1647. 


149  OF    MAEEIED    WOMEN.  §§  337-341 

Affected.— Act  of  May  12,  1846,  applied  only  to  single 
acknowledgments  and  authority  of  officers,  which  are 
considered  elsewhere.*^** 

§  337.  Act  of  March  16,  1848 — Form  and  Requirements 
not  Affected.— Act  of  March  16,  1848  (taking  effect  Au- 
gust 7,  1848),*^^  authorized  chief  justices  of  the  county 
court  to  take  the  acknowledgments  of  married  women, 
under  the  same  rules  as  are  provided  for  notaries. *^^ 

§  338.  Act  of  December  18,  1849 — Form  and  Requirements 
not  Affected.— The  act  of  December  18,  1849  (taking  ef- 
fect from  passage),^^^  authorized  clerks  of  the  county 
courts  to  take  the  acknowledgments  of  married  women 
under  the  same  rules  prescribed  for  judges  of  the  su- 
preme or  district  courts  and  notaries.*^"* 

§  339.  Act  of  February  9,  1856— Validates.— Act  of  Feb- 
ruary 9,  1856,*^^  authorized  deputy  county  clerks  to 
take  the  acknowledgments  of  married  women,  and  ac- 
knowledgments previously  taken  by  such  deputy  clerks 
were  declared  to  be  as  valid  as  if  done  by  said  prin- 
cipal clerks.*^® 

§  340.  Act  of  February  9,  1860— Validates.— Act  of  Feb- 
ruary 9,  1860,^^''  validates  certain  certificates  of  ac- 
knowledgments of  married  women.^^*  Act  of  January 
14, 1862,  validates  acknowledgment  made  before  a  dep- 
uty clerk  after  April  6,  1861.*^^ 

§  341.     Act  of  August  13,  1870— Validates.— The  act  of 

130  See   ante,    §§    91-93;    post,    §§    644-656. 

131  3  L.  T.  119. 

132  See  ante,  §   329;  and  post,  §§  674-679. 

133  3    L.    T.    449. 

134  See  ante,  §  329,  post,  §  681. 

135  4  L.  T.  262. 

136  See  post,  §§  1000-1010. 

137  4  L.  T.  1437. 

138  See  post,  §§  959-962. 

139  See  post,  §§  1000-1010,  1038. 


§§  342-345     CERTIFICATION  OF  ACKNOWLEDGMENTS.  150 

August  13,  1870/^**  validates  certain  acknowledgments 
made  before  county  judges.^"** 

§  342.  Act  of  April  27,  1874— Validates.— The  act  of 
April  27,  1874,^'*^  validates  certain  acknowledgments 
without  the  state  and  within  the  United  States,  before 
any  officer  in  such  cases  now  authorized  to  take  such  ac- 
knowledgments. ^■*^ 

§  343.  Act  of  May  25,  1876 — Form  and  Requirements  not 
Affected.— The  act  of  May  25,  1876,^"*-*  authorized  county 
clerks  and  their  deputies  to  take  the  acknowledgments 
of  married  women,  but  did  not  affect  requirements  of 
acknowledgment. 

§  344.  Act  of  July  28,  1876— Validates.— The  act  of  July 
28,  1876,  validates  acknowledgments  of  married  women 
taken  before  a  chief  justice  of  county  court,  district 
clerk,  notary  public  or  other  authorized  officer,  provided 
the  certificate  shall  show  on  its  face  that  the  married 
woman  was  examined  by  the  officer  taking  the  acknowl- 
edgment separate  and  apart  from  her  husband,  and  hav- 
ing the  same  fully  explained  to  her,  she  declared  that 
she  had  willingly  signed  the  same,  and  that  she  did  not 
wish  to  retract  it,  or  words  to  that  effect.  ^'*^ 

§  345.  Revised  Statutes  of  1879  and  1895  (Took  Effect 
September  1,  1879) — Requirements  of  Wife's  Acknowledg- 
ment.— Article  4618  (4310),  revising  act  of  April  30, 
1846,  provided  that  "no  acknowledgment  of  a  married 
woman  to  any  conveyance  or  other  instrument  purport- 
ing to  be  executed  by  her  shall  be  taken  unless  she  has 
had  the  same  shown  to  her,  and  then  and  there  fully 
explained  by  the  officer  taking  the  acknowledgment,  on 

140  6  L.  T.  251. 

141  See  post,  §§  1000-1010,  1039. 

142  8  L.  T.  154. 

143  See  post,  §§  1000-1010,  1041. 

144  8  L.  T.  846. 

145  See  post,  §§  1000-1010,  1049,  1050. 


151  OF  MARRIED  WOMEN.  ?§  346,  347 

the  examination  privily  and  apart  from  her  husband; 
nor  shall  he  certify  to  the  same  unless  she  thereupon 
certifies  to  such  officer  that  the  same  is  her  act  and 
deed,  that  she  has  willingly  signed  the  same,  and  that 
she  wishes  not  to  retract  it."  It  is  not  necessary  for  the 
certificate  to  show  that  deed  was  shown  to  the  wife.*^® 

§  346.  Husband  Must  Join  Wife  in  Her  Conveyance- 
Article  635  (559),  Revised  Statutes  of  1895  (1879): 
"The  husband  and  wife  shall  join  in  the  conveyance  of 
real  estate  the  separate  property  of  the  wife;  and  no 
such  conveyance  shall  take  effect  until  the  same  shall 
have  been  acknowledged  by  her  privily  and  apart  from 
her  husband,  before  some  officer  authorized  by  law  to 
take  acknowledgments  to  deeds,  for  the  purpose  of  be- 
ing recorded  and  certified  to,  in  the  mode  pointed  out 
in  article  4643." 

It  should  be  noted  that  article  4643,  aforesaid,  of  Re- 
vised Statutes  of  1895,  does  not  prescribe  the  manner 
in  which  a  married  woman's  acknowledgment  may  be 
taken,  and  the  reference  was  evidently  a  mistake.  It 
was  corrected  by  the  act  of  1897.  This  mistake  does 
not  occur  in  Revised  Statutes  of  1879.**'' 

§  347.  Conveyance  of  Homestead  Must  be  Acknowledged 
by  Vife.— Article  636  (560)  ,  Revised  Statutes  of  1895 
(1879):  "The  homestead  of  a  family  shall  not  be  sold 
and  conveyed  by  the  owner,  if  a  married  man,  without 
the  consent  of  the  wife.  Such  consent  shall  be  evi- 
denced by  the  wife  joining  in  the  conveyance  and  sign- 
ing her  name  thereto,  and  by  her  separate  acknowledg- 
ment thereto  taken  and  certified  to  before  the  proper 
officer  and  in  the  mode  pointed  out  in  article  4643." 

The  reference  to  "article  4643,"  in  the  above  statutee, 
was  evidently  a  mistake,  whicli  was  corrected  by  the 
act  of  March  26,  1897.     The  mistake  being  obvious,  and 

146  Ante,    §    297. 

147  See  post,  §  347. 


§§  348,  348a     CERTIFICATION  OF  ACKNOWLEDGMENTS.  152 

it  being  apparent  that  article  4621  was  intended,  it 
seems  from  the  authorities  that  the  court  would  inter- 
pret the  statute  as  referring  to  the  proper  article.  ^^'^ 

§  348.  Form  of  Certificate  of  Wife's  Acknowledgment.— 
The  certificate  of  acknowledgment  of  a  married  woman 
must  be  substantially  in  the  following  form : 

"State  of , 

County  of  


"Before  me  [here  insert  the  name  and  character  of  the 

officer],  on  this  day  personally  appeared ',  wife 

of ,  known  to  me  [or  proved  to  me  on  the  oath 

of • ]  to  be  the  person  whose  name  is  subscribed 

to  the  foregoing  instrument,  and  having  been  exam- 
ined by  me  privily  and  apart  from  her  husband,  and 
having  the  same  fully  explained  to  iier,  she,  the  said 

,  acknowledged  such  instrument  to  be  her  act 

and  deed,  and  declared  that  she  had  willingly  signed 
the  same  for  the  purposes  and  consideration  therein 
expressed,  and  that  she  did  not  wish  to  retract  it. 

"Given  under  my  hand  and  seal  of  office  this  

day  of ,  A.  D. . 

"[Seal]  •" 

It  is  not  necessary  for  the  certificate  to  show  that  the 
instrument  was  shown  to  her.^^^  Certificate  must  show 
that  she  was  known  or  made  known  to  oflficer.^^® 

§  348a.  Act  of  March  26,  1897 — Conveyance  of  the  Home- 
stead.— "Section  1.  Be  it  enacted  by  the  legislature  of 
the  state  of  Texas :  That  article  636,  title  20,  of  the  Re- 
vised Civil  Statutes  of  the  state  of  Texas,  be  and  the 
same  is  hereby  amended  so  as  to  read  as  follows : 

"Article  636.  The  homestead  of  the  family  shall  not 
be  sold  and  conveyed  by  the  owner,  if  a  married  man, 

148  State  V.  McCracken,  42  Tex.  383;  Chambers  v.  State,  25  Tex. 
307;  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  655,  656. 

149  Breneman  v.  Mayer   (Tex.  Civ.  App.),  58  S.  W.  733. 

150  Hurst  V.  Finley   (Tex.  Civ.  App.),  55  S.  W.  388. 


153  OF    MAEEIED    WOMEN.  §  348b 

without  the  consent  of  the  wife.  Such  consent  shall 
be  evidenced  by  the  wife  joining  in  the  conveyance  and 
signing  her  name  thereto,  and  by  her  separate  acknowl- 
edgment thereof  taken  and  certified  to  before  the  proper 
officer  and  in  the  mode  pointed  out  in  article  4621."^^-'^ 

§  348b.  Conveyance  of  Wife's  Separate  Property. — "Sec- 
tion 1.  Be  it  enacted  by  the  legislature  of  the  state  of 
Texas:  That  article  635,  title  20,  of  the  Revised  Civil 
Statutes  of  the  state  of  Texas,  be  and  the  same  is  hereby 
amended  so  as  to  read  as  follows: 

"Article  635.  The  husband  and  wife  shall  join  in 
the  conveyance  of  real  estate,  the  separate  property  of 
the  wife;  and  no  such  conveyance  shall  take  effect  until 
the  same  shall  have  been  acknowledged  by  her  privily 
and  apart  from  her  husband  before  some  officer  author- 
ized by  law  to  take  acknowledgments  to  deeds  for  the 
purpose  of  being  recorded,  and  certified  to  in  the  mode 
pointed  out  in  article  4621."^^^ 

151  10  L.  T.  1094. 

152  10  L.  T.  1095. 


PROOF  OF  INSTRUMENTS  BY  WITNESSES.  154 


CHAPTER  XII. 

PROOF    OF    INSTRUMENTS    BY    WITNESSES. 
A.     PROOF   AND   WITNESSES    GENERALLY. 

§  349.     Proof  made  under  what  law. 

§  350.     Necessity  of  subscribing  witnesses   under   Spanish  law  prior 

to  1836. 
§  351.  Conveyance  not  full  proof  unless  witnessed. 

§  352.  Witnessed  by  notaries. 

§  353.     Under  colonization  laws,  title  not  witnessed  must  be  proved. 
§  354.     Necessity   of   subscribing   witnesses   subsequent    to   1836. 
§  355.  Married  woman's  deed  cannot  be  proved  by  subscribing 

witnesses    when. 
§  356.  By   subscribing  witnesses  not   required  in   all   cases. 

§  357.     Act   of   December   20,   1836 — How  made   under — Presumption 

as  to  proof. 
§  358.  How  far  repealed. 

§  359.     How  proved   under   subsequent   statutes. 

B.     HOW   PROVED    GENERALLY. 

§  360.     Judge  attesting  is   subscribing  witness  when. 

§  361.  Acknowledgment  of  officer's  signature  to  certificate  sufficient 
proof. 

§  362.  Officer  not  competent  without  accounting  for  absence  of  wit- 
ness. 

§  363.     Subscribing  witness  must  be  produced  if  possible. 

§  364.     Sole   subscribing  witness   sufficient   when. 

§  365.     Where  witness  signs  by  making  his  mark. 

§  366.  Certificate  that  instrument  was  "duly  proven  before  me" 
insufficient. 

§  367.  Necessary  to  state  that  witness  signed  at  request  of  grantor 
when. 

§  368.  Signed  at  request  of — Rule  at  present  time. 

§  369.     Not  necessary  to  show  witness'  means  of  knowledge. 

§  370.     Means  of  knowledge  stated. 

§  371.  Must  show  witness  saw  grantor  sign  or  heard  him  acknowl- 
edge. 

§  372.     Not  necessary  for  witness  to  have  seen  execution. 

§  373.     Saw  firm  name  signed. 

§  374.     Grantor's  name  instead  of  attorney's  in  certificate  fatal. 

§  375.     Clerical   omission   not   fatal   when. 


155  PROOF  OF  INSTRUMENTS  BY  WITNESSES. 


C.     PROOF  BY  WHOM  TAKEN. 

§  376.     Generally. 

§  377.     Officer  who  is  subscribing  witness  is  qualified. 

D.     PROOF  OF  INSTRUMENTS  FOR  RECORD  BY  WHOM  MADE. 

§  378.  By   subscribing   witnesses    generally. 

§  379.  Where  there  were  no  subscribing  witnesses. 

§  380.  Witness  beyond  jurisdiction  of  the  court. 

§  381.  Act  of  May  12,  1846. 

§  382.  Act    of    March    6,    1863. 

§  383.  Revised   Statutes  of   1879   and   1895. 

§  384.  Number  of  witnesses  to  prove  handwriting  required. 

E.     WHO  MAY  BE  SUBSCRIBING  WITNESSES. 

§  385.  General    rule. 

§  386.  Held  that   grantee   is  incompetent  witness. 

§  387.  Interest   disqualified  witness  when. 

§  388.  Idem. 

§  389.  Interest  does  not  disqualify  when. 

§  390.  Where    one   witness   incompetent,   handwriting  of    other   may 

be  proved. 

§  391.  Grantor's  selection  and  volunteer  witnesses. 

F.     WITNESS  MUST  BE  KNOWN  TO  OFFICER. 
§  392.     Witness  required  to  be  known  when. 

G.     CERTIFICATE    OF   PROOF   BY    SUBSCRIBING   WITNESSES. 

§  393.  Must  show  that  witness  known. 

§  394.  Idem. 

§  395.  That  witness  was  sworn. 

§  396.  That  witness   saw   execution,   or   heard   acknowledgment   and 

was  requested  to  sign. 

§  397.  Idem— Rule  prior  and  subsequent  to  1846. 

§  398.  Where   witness'   name   appears   on   deed,   it   is   not   necessary 

to   certify  that   he  was  a  subscribing  witness. 

§  399.  Alternative  certificate. 

§  400.  Irregular  certificate. 

§  401.  Ofiicial   character. 

§  402.  Seal. 

§  403.  Signature. 

§  404.  Purposes  and  considerations. 

§  405.  "Execute"  instead  of  "subscribe." 

§  406.  Other  requirements  and  force  and  effect  of  certificate. 

§  407.  Form  of  certificate  of  proof  controlled  by  what  law. 

§  408.  Substantial  compliance  with  statute  only  required. 


PROOF  OF  INSTRUMENTS  BY  WITNESSES.  156 

H.     STATUTORY  REQUIREMENTS  AND  FORMS  FOR  PROOF  BY 
SUBSCRIBING    WITNESSES. 

§  409.  Decree  of  April  18,  1834 — Judges  to  be  assisted  by  witnesses. 

§  410.  Act  of  December  20^  1836— Chief  justices  authorized  to  take 

proof. 
§  411.  Clerlv   authorized   to   record   on   proof   by   one   witness. 

§  412.  Proof  by  two  witnesses  or  handwriting  of  one. 

§  413.  Certificates  and  form  under  this  act. 

§  414.  Act  of  January  19,  1839— Required  certificate. 

§  415.  Act  of  January  18,  1840 — Statutes  of  frauds. 

§  416.  Act  of  February  5,  1840— Two  witnesses— Certificate. 

§  417.  Act  of  February  5,  1841— Validates. 
§  418.  Idem— Certificate   and   proof. 

§  419.  Act   of  May  8,  1846 — Commissioners   of  deeds. 

§  420.  Act  of  May  12,  1846 — Proof  and  acknowledgment,  how  made. 
§  421.  Handwriting   proved. 

§  422.  Grantor   unknown. 

§  423.  Certificate  attested. 

§  424.  Presumption  where  no  certificate  of  proof  of  identity. 

§  425.  No  form  provided. 

§  426.  Act  of  February  9,  1860— Validates. 

§  427.  Acts  of  1861,  1862,  1866  and  1871. 

§  428.  Act  of  1863— Where  grantor  makes  his  mark. 

§  429.  Act   of   August   13,   1870— Validates. 

§  430.  Act   of  May   19,   1871— Witness  not   disqualified  by  interest. 

§  431.  Act  of  April' 27,  1874— Validates. 

§  432.  Revised   Statutes    of    1879    and    1895— Proof   by    subscribing 

witness. 
§  433.  Grantor  know   or  proven. 

§  434.  Prior  to   Revised   Statutes   of   1879. 

§  435.  Form  of  certificate. 

§  436.  Proof   of  handwriting. 

§  437.  Facts  to  be  proven. 

§  438.  Where  instrument  signed  by  mark. 

§  439.  Number  of  witnesses. 

I.     PROOF  OF  INSTRUMENTS  BY  PROOF  OF  HANDWRITING. 

§  440.  What  law  in  force. 

§  441.  Proof  must  conform  to  statute  in  force  at  time  proof  is  made. 

§  442.  Proof  for  record  by  proof  of  handwriting. 

§  443.  Must  be  proved  by  persons  authorized  by  statute. 

§  444.  Where    witness    is    interested. 

§  445.  Where  witness  is  grantor  or  grantee. 

§  446.  Ancient  instrument. 

§  447.  Predicate  for  secondary  evidence. 

§  448.  Most  satisfactory  proof. 


157  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.  §  349 

§  449.  Proof  of  handwriting  by  comparison. 

§  450.  Rule  modified. 

§   451.  Certificate  of  proof  by  proof  of  handwriting. 

§  452.  Substantial  compliance  only  necessary. 

§  453.  Valid   forms. 

§  454.  Idem. 

J.     STATUTES   AND   NOTES   CONCERNING   PROOF  BY  PROOF 
OF    HANDWRITING. 

§  455.  Act  of  December  20,  1836. 

§  456.  Handwriting   of   whom— Certificate. 

§  457.  Admissible  in  evidence  but  not  of  record. 

§  458.  Act  of  January  19,  1839— Signature  of  signer. 

§  459.  Act    of    January    18,    1840— Statute    of    frauds. 

§  460.  Act  of  February  5,  1840— Proof  by  two  witnesses. 

§  461.  Act  of  February  5,  1841— By  a  subscribing  witness. 

§  462.  Act  of  May  12,  1846 — Witness  absent. 

§  463.  Sufficient  proof— Grantee  prove  absence  of  witnesses. 

§  464.  Act  of  February  9,  1860— Validates. 

§  465.  Act  of  March  6,  1863 — Witness  absent. 

§  466.  Sufficient   proof   under   this   act. 

§  467.  Revised  Statutes  of  1879  and  1895— Handwriting  of  grantor 

and  one  subscribing  witness  proved. 
§  468.  Facts  which  must  be  proven. 

§  469.  Signature  by  mark— Proof,  how  made. 

§  470.  Proof  made  by  whom. 

K.     OTHER  MEANS  OF  PROVING  CONVEYANCES  FOR  RECORD. 
§  471.     Obtaining   and   recording   judgment. 
§  472.     Curing  certificates. 

L.     PROOF  OF  DEEDS  OFFERED  IN  EVIDENCE. 

§  473.  Common-law    rules    of    evidence. 

§  474.  By  subscribing  witnesses. 

§  475.  Subscribing  witnesses  not  obtainable  or  adverse  party. 

§  476.  Where  witness'   handwriting  cannot  be  proved. 

§  477.  May  be  proved  by  grantee  when. 

§  478.  Proved  by  any  competent  witnesses  when. 

§  479.  No  subscribing  witnesses — Proof,  how  made. 

§  480.  By  other  evidence. 

§  481.  Primary  and  secondary  evidence. 

§  482.  General  rule. 

§  483.  Line   drawn   between   primary  and   secondary   evidence. 

A.     PROOF   AND  WITNESSES,   GENERALLY. 

§  349.     Proof  Made  Under  What  Law. — Proof  of  instru- 
ments for  record  must  be  made  in  compliance  with  the 


§§  350,  351     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  158 

statutory  provisions  of  this  state  relating  to  same,  the 
common-law  modes  of  proof  having  no  application  to 
proof  for  registration.*  And  must  be  made  in  com- 
pliance with  law  in  force  at  time  proof  is  made.^ 


2 


§  350.  Necessity  of  Subscribing  Witnesses  Under  Spanish 
Law  Prior  to  1836. — Prior  to  the  act  of  December  20, 
1836,  the  Spanish  civil  law  was  in  force  in  Texas,  ex- 
cept so  far  as  it  was  modified  by  the  decrees  of  Mexico, 
and  of  Coahuila  and  Texas.  Under  the  Spanish  law 
prior  to  said  date,  "every  act  sealed  with  the  king's 
seal,  with  that  of  an  archbishop,  bishop,  or  city  council, 
or  abbot,  or  master  of  an  order  of  knighthood ;  or  sealed 
with  the  seal  of  a  count,  of  a  council,  or  of  any  person 
having  an  authentic  seal,  will  make  full  proof  of  what 
it  contains ;  likewise  the  act  made  by  the  hand  of  a  no- 
tary public  in  which  is  written  the  names  of  at  least  two 
witnesses,  the  day,  month,  year  and  place  when  and 
where  it  was  made,  makes  proof  of  what  it  contains. 
And  so  we  say,  that  any  writing  not  executed  by  the 
hand  of  a  notary  public,  but  by  some  other  person,  and 
signed  by  two  witnesses  in  their  own  handwriting,  will 
be  valid  during  the  lives  of  the  witnesses,  on  their  at- 
testing that  the  contract  was  made  as  set  forth  in  such 
writing;  provided  it  were  a  contract  which  could  be 
proved  by  the  testimony  of  two  witnesses."  The  names 
of  the  witnesses  should  be  written  by  themselves,  or  by 
the  hand  of  the  notary  who  executed  the  act,  according 
to  the  customs  of  the  country.^ 

§  351.  Conveyance  not  Full  Proof  Unless  Witnessed. — 
"If  anyone  execute  any  writing  against  himself  with  his 
own  hand,  or  cause  it  to  be  executed  by  another,  or  put 
his  seal  thereto,  it  will  be  proof  in  any  suit  against  him, 
or  for  anything  lent  him ;  as  for  bread  or  money,  or  any 

1  Currell  v.  Higgs,  1  U.  C.  61;  Woolfolk  v.  Graniteville  etc.  Co., 
22  S.  C.  332;  ante,  §  68. 

2  Ante,  §  68. 

3  Sayles'  Early  Laws,  arts.  127,  128;  ante,  chapter  1,  §  3  (f). 


159  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.    §§  352,  353 

other  movable  thing  which  can  be  counted,  weighed  or 
measured;  but  if  he  whose  name  is  written  in  the  in- 
strument denies  it,  no  faith  shall  be  given  to  it,  unless 
the  other  party  prove  that  it  was  made  by  him  or  his 
his  order.  Yet  if  the  handwriting  concern  any  specific 
thing,  as  the  sale  or  exchange  of  a  house,  vineyard,  or 
other  object,  it  would  not  be  full  proof  thereof,  though 
it  would  afford  a  presumption,  because  writings  of  this 
nature  ought  to  be  executed  by  the  hand  of  a  notary 
public  or  other  notary  and  signed  by  respectable  wit- 
nesses, in  order  to  prevent  all  fraud  or  forgery."* 

§  352.  Witnessed  by  Notaries. — After  a  deed  is  written 
by  a  notary  he  should  subscribe  his  mark  and  name. 
"It  is  sufficient  that  all  public  acts  be  witnessed  by  two 
notaries  public,  who  shall  subscribe  their  names  thereto, 
independent  of  the  notary  by  whom  it  was  written. 
And  if  so  many  notaries  cannot  be  had  in  the  place, 
then  it  will  be  sufficient  for  three,  or  at  least  two,  good 
men  to  subscribe  as  witnesses,  writing  their  names  at 
the  end  of  the  instrument  before  the  notary  subscribes 
his."^  It  is  intimated  that  unless  there  were  instru- 
mental witnesses,  when  the  sale  is  made  before  a  no- 
tary in  1835,  the  instrument  is  not  a  complete  and  per- 
fect public  instrument ;  and  while  they  may  not  furnish 
full  proof,  but  slight  additional  proof  will  be  required.^ 
But  the  court  fails  to  note  the  distinction  between  as- 
sisting and  instrumental,  which  accounts  for  this  state- 
ment, no  doubt. '^ 

§  353.  Under  Colonization  Laws,  Title  not  Witnessed  Must 
be  Proved. — Under  the  instructions  to  the  land  commis- 
sioner, by  the  colonization  laws  of  September  4,  1827, 
requiring  all  titles,  etc.,  signed  by  the  commissioner  to 
be  attested  by  two  assisting  witnesses,  it  is  held  that  the 

4  Saylcs'  Early  Laws,  arts.  127,  128.     See  ante,  §  3   (f). 

5  Sayles'  Early  Laws,  arts.  127,  128.     gee  ante,  §  3   (f). 

6  Cowan  V.  Williams,  49  Tex,  395. 

7  See  ante,  §  3  (f). 


§  354  PROOF  OF  INSTRUMENTS  BY  WITNESSES.  160 

Avant  of  one  or  both  of  the  assisting  witnesses  does  not 
render  the  instrument  null  or  void,  but  only  the  authen- 
tication of  it  defective,  and  that  the  authentication 
or  proof  of  execution  may  be  proven  by  other  evi- 
dence.^ The  object  of  the  requiring  assisting  wit- 
nesses Avas  to  render  other  proof  unnecessary.*  The 
omission  of  instrumental  witnesses  in  an  act  of  sale 
before  notary  public  in  1835  did  not  render  instrument 
void.^**  Title  executed  by  commissioner  without  either 
instrumental  or  assisting  witnesses  was  not  an  au- 
thentic act,  but  might  be  proved  by  other  evidence.*^ 

§  354.  Necessity  of  Subscribing  Witnesses  Subsequent  to 
1836.— After  the  act  of  December  20,  1836,  subscribing 
witnesses  were  not  essential  to  the  validity  of  an  in- 
strument, or  its  proper  registration,  but  only  serve  as 
a  safeguard,  so  that  in  case  the  instrument  is  not  ac- 
knowledged, or  not  properly  acknowledged,  proof  for 
registration,  except  in  cases  of  married  women,  may  be 
made  by  one  of  the  subscribing  witnesses;*^  even  by  a 
sole  subscribing  witness.  ^^  A  deed  acknowledged  be- 
fore a  notary  without  subscribing  witnesses  is  admissi- 
ble in  evidence.  Or  proof  of  such  deed  may  be  made 
by  the  grantor.^*  A  trustee  making  a  deed  to  himself, 
there  being  no  witnesses  and  no  acknowledgment,  may 
testify  to  its  execution.  ■'^^ 

8  Clay  V.  Holbert,  14  Tex.  201;  Allen  v.  Hoxey,  37  Tex.  334;  Ruis 
V,  Chambers,  15  Tex.  587;  Jones  v.  Monies,  15  Tex.  351;  Watrous  v. 
McGrew,  16  Tex.  511;  Grimes  v.  Bastrap,  26  Tex.  312;  State  v.  De 
Leon,  64  Tex.  559. 

9  Clay  V.  Holbert,  14  Tex.  201;  Allen  v.  Hoxey,  37  Tex.  334;  Ruis 
V.  Chambers,  15  Tex.  587;  Jones  v.  Montes,  15  Tex.  351;  Watrous  v. 
McGrew,  16  Tex.  511;  Grimes  v.  Bastrap,  26  Tex.  312;  State  v.  De 
Leon,  64  Tex.  559. 

10  Cowan  V.  Williams,  49  Tex.  395. 

11  Grimes  v.  Bastrap,  26  Tex.  312.     And  see  ante,  §  3  (f). 

12  Stinnett  v.  House,  1  U.  C.  486;  Smith  v.  Adams,  4  Tex.  Civ. 
App.  5,  23  S.  W.  49. 

13  See  post,  §  364. 

14  Meuley  v.  Zeigler,  23  Tex.  89,  93;  McCarthy  v.  Johnson,  20 
Tex.  Civ.  App.  184,  49  S.  W.  1100. 

15  Bohn  V.  Davis,   75  Tex.   26,   12   S.  W.   837.     See  "Acknowledg. 


161  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  355-357 

§  355.  Married  Woman's  Deed  cannot  be  Proved  by  Sub- 
scribing Witnesses  When. — A  married  woman's  deed  can- 
not be  j)roved  for  registration  by  subscribing  witnesses 
unless  her  husband  has  deserted  her  or  he  is  insane. 
It  is  void  unless  properly  acknowledged,  as  a  general 
rule,  but  the  acknowledgment  and  certificate,  as  well  as 
the  deed,  might  be  proven  in  certain  cases  by  parol  evi- 
dence. ^^ 

§  356.  By  Subscribing  Witnesses  not  Required  in  All 
Cases. — Under  the  act  of  December  20,  1836,  authorizing 
registration  on  the  acknowledgment  of  the  deed  or  his 
signature  by  the  signer,  it  was  held  that  where  the 
officer  who  executed  the  protocol  and  issued  to  the 
grantee  the  testimonio  or  second  original,  appeared  be- 
fore the  county  clerk  and  acknowledged  his  signature 
to  the  certificate  authenticating  the  testimonio,  was  suf- 
ficient to  entitle  it  to  record. ^'^  Proof  by  subscribing 
witnesses  was  not  in  all  cases  required.  In  some  in- 
stances, proof  of  the  handwriting  of  the  signer,  where 
there  were  no  subscribing  witnesses,  would  be  sufficient 
to  entitle  the  instrument  to  record.^* 

§  357.  Act  of  December  20,  1836— How  Made  Under— Pre- 
sumption as  to  Proof. — In  discussing  this  act  in  Paschal 
V.  Perez,  Judge  Hemphill  says:  "The  provisions  of  the 
law  of  1836,  under  which  this  title  was  registered,  are 
not  a  little  obscure;  and  such  interpretation,  consistent 
with  the  intent  of  the  act,  should  be  given  as  would  se- 
cure the  registration  of  the  titles  under  which  persons 
owned  or  claimed  their  lands.     The  thirty-fifth  section 

ments, "  "Origin  and  Necessity,"  ante,  and  Dobbin  v.  Cordiner,  41 
Minn.  165,  16  Am.  St.  Rep.  683,  42  N.  W.  870,  4  L.  R.  A.  334. 

ic  Utzfield  V.  Bodman,  76  Tex.  361,  13  S.  W.  474.  And  ante,  §§ 
243,  245,  273,  283. 

17  Edwards  v.  James,  7  Tex.  377. 

18  Paschal  v.  Perez,  7  Tex.  358;  McKissick  v.  Colquhoun,  18  Tex. 
152;  Gainer  v.  Cotton,  49  Tex.  104;  McCarthy  v.  Johnson,  20  Tex. 
Civ.  App.  184,  49  S.  W.  1100. 

11 


§  357  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.  162 

authorizes  the  record  of  any  instrument  required  to  be 
recorded,  provided  one  of  the  witnesses  of  the  number 
required  by  law  shall  SAvear  to  the  signature  of  the 
signer  or  he  shall  acknowledge  the  same.  By  section 
38,  it  is  declared  that  titles,  etc.,  cannot  be  admitted 
to  record  unless  proved  by  at  least  two  subscribing 
witnesses,  if  living  in  the  county ;  if  not  so  living  in  the 
county,  that  the  handwriting  shall  be  proven,  and  in 
all  cases  the  certificates  of  any  county  judge,  that  the 
witness  appeared  before  him  and  acknowledged  his  sig- 
nature, or  that  the  handwriting  of  the  same  was  duly 
proved,  shall  be  sufficient  evidence  to  authorize  the 
clerk  of  the  county  court  to  enter  such  title,  etc.,  upon 
record.  The  first  section  requires  one  witness  to  swear 
to  the  siguature  of  the  signer.  The  second  requires 
proof  by  two  subscribing  witnesses,  if  living  in  the 
county;  if  not  so  living,  then  the  handwriting  must  be 
proven;  but  the  handwriting  of  whom,  whether  of  the 
witnesses  or  of  the  signer,  is  not  stated ;  and  the  phrase- 
ology is  then  immediately  changed  from  the  plural  to 
the  singular  number,  and  the  acknowledgment  of  the 
said  witness  or  the  proof  of  his  handwriting  is  held  to 
be  sufficient.  The  first  requires  proof  of  the  signature 
of  the  signer.  The  second,  at  least  in  its  last  provision, 
is  satisfied  with  the  proof  of  the  signature  of  the  wit- 
ness. 

"In  the  first,  the  witnesses  are  not  specially  described 
as  subscribing  witnesses;  and  it  is  probable  that,  upon 
this  construction,  proof  was  admitted  by  the  clerk  of  the 
signature  of  the  signer  as  a  sufficient  proof  to  admit  the 
paper  to  record.  This  may  be  deemed  a  departure  from 
the  literal  import  of  the  terms  employed  in  the  statute, 
but  it  accords  with  its  spirit  and  intent.  Its  object  and 
policy  was  to  require  evidence  of  claims  to  lands  to  be 
spread  upon  a  public  record  so  that  third  persons  might 
be  satisfied  of  their  existence  and  of  the  titles  by  which 
they  were  supported ;  and  if  the  instrument  under  which 
title  is  claimed  is  legal  and  authentic  without  subscrib- 
ing witnesses,  it  would  require  language  too  plain  to 


163  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.     §§  358,  359 

be  mistaken  to  exclude  it  from  record  for  the  want  of 
proof  by  such  witnesses,  the  signature  of  the  signer 
being  substantiated  by  satisfactory  proof."^^  This  case 
is  again  affirmed  in  the  case  of  McKessick  v.  Colquhoun, 
18  Tex.  152,  where  it  is  held  that  it  is  not  requisite  in 
all  cases  that  proof  for  record  should  be  made  by  sub- 
scribing witnesses.  Held,  that  where  record  is  made 
presumption  is  that  proof  was  made  before  the  county 
clerk  under  above  act.'^ 

§  358.  How  Far  Repealed. — This  act,  in  so  far  as  it  au- 
thorizes proof  by  others  than  subscribing  witnesses, 
was  repealed  by  the  act  of  January  19,  1839.^* 

§  359.  How  Proved  Under  Subsequent  Statutes. — Under 
the  act  of  January  9,  1839,^^  proof  must  be  made  by  a 
subscribing  witness,  who  shall  swear  to  the  signature 
of  the  signer,  a  certificate  of  which  shall  be  made  upon 
the  instrument.^^  Under  the  act  of  January  18,  1840, 
a  conveyance  of  personal  property  for  a  consideration 
other  than  valuable,  where  possession  does  not  remain 
with  the  grantee,  must  be  proven  for  record  by  two  or 
more  witnesses.^^  This  section  was  virtually  repealed 
by  the  acts  of  February  5,  1841,  and  May  13,  1846.^^ 
The  act  of  February  5,  March  16,  1840,^**  required 
proof  to  be  made  by  two  subscribing  witnesses.^''  The 
act  of  February  5,  1841,^^  validates  certain  proofs.^^ 
It  also  provided  for  proof  within  the  state  by  a  sub- 

19  Paschal  v.  Perez,  7  Tex.  358. 

20  Ante,   §   47. 

21  McCarty  v.  Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100; 
post,    §    414. 

22  2   L.  T.   52. 

23  McCarty  v.  Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100; 
Holliday  v.  Cromwell,  26  Tex.  194;  post,  §  415. 

24  2   L.   T.   203. 

25  Manley  v.  Culver,  20  Tex.  143. 

26  2  L.   T.   327. 

27  Post,  §  416. 

28  2  L.  T.  633. 

29  See  post,  §  417. 


§§  360-362     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  164 

soribiiiii'  witness  and  for  proof  without  the  state  by  two 
subscribing  witnesses.^**  The  act  of  May  12,  July  13, 
1816,^^  is  now  in  force.^^ 

B.     HOW   PROVED,   GENERALLY. 

§  360.  Judge  Attesting  is  Subscribing  Witness  When. — 
A  judi>e  who  signs  an  instrument  and  thus  attests  the 
fact  of  the  signature  of  the  maker  is  not  the  less  a  sub- 
scribing witness  because  his  signature  not  only  attested 
such  fact,  but  under  the  laws  then  existing  gave  the  act 
a  force  and  effect  in  evidence  which  could  not  be  im- 
parted to  it  by  the  signature  of  a  merely  private  wit- 
ness. ^^  But  the  reverse  is  held  in  a  later  case  under 
the  act  of  1846.^* 

§  361.  Acknowledgment  of  Officer's  Signature  to  Certificate 
Sufficient  Proof.— Where  the  officer  who  had  executed  the 
protocol,  and  issued  the  testimonio  or  second  original 
to  the  purchaser,  appeared  before  the  county  clerk  and 
acknowledged  his  signature  to  the  certificate  authenti- 
cating the  testimonio,  it  was  held  that  this  was  suffi- 
cient proof  of  execution  to  entitle  the  instrument  to  reg- 
istration, under  section  35  of  the  act  of  1836.^^ 

§  362.  Officer  not  Competent  Without  Accounting  for  Ab- 
sence of  Witness — ^But  it  was  held  in  an  earlier  case  that, 
where  a  bond  was  executed  in  the  state  of  Arkansas  be- 
fore two  subscribing  witnesses,  and  also  acknowledged 
and  certified  before  a  judge  of  the  county  court  of  that 
state  that  the  said  county  judge  was  not  competent  to 
prove  the  bond  for  record  without  first  accounting  for 
the  absence  of  the  subscribing  witnesses.  In  this  case 
he  made  oath  before  a  notary  in  Texas  that  it  was  ac- 

30  Post,  §  418. 

31  2   L.    T.   1544. 

32  Post,  §§  420-425. 

33  McKissick  v.   Colquhoun,  18  Tex.  153. 

34  McDaniel  v.  Needham,  61  Tex.  272. 

35  Edwards  v.  James,  7  Tex.  377,  378. 


165  PROOF  OF  INSTEUMENTS  BY  WITNESSES.     §§  363-365 

kno'wleds^ed  before  liim,  and  that  his  certificate  was 
genuine,  and  upon  this  affidavit  it  was  admitted  to  rec- 
ord in  Lamar  company,  Texas,  and  the  same  witness  gave 
his  deposition  on  interrogatories  to  the  same  fact,  and 
further  stated  that  he  saw  the  makers  of  the  bond  ex- 
ecute the  same,  the  subscribing  witnesses  not  being 
sworn  nor  their  absence  accounted  for ;  it  was  held  that 
the  instrument  was  not  properly  admitted  to  record, 
nor  was  it  legally  proven  before  the  jury.^® 

§  363.  Subscribing^  Witness  Must  be  Produced  if  Possible. 
The  subscribing  witnesses,  or  one  of  them,  must  be  pro- 
duced, if  possible,  to  prove  the  deed;  but  the  party  de- 
siring to  prove  it  may  impeach  the  witness  though  called 
by  himself.^" 

§  364.     Sole  Subscribing  Witness  Sufficient  When It  is 

held  that  under  the  validating  act  of  February  5, 
March  17,  1841,  a  sole  subscribing  witness  might  prove 
a  deed  for  record;  that  it  being  clear  that  one  of  sev- 
eral subscribing  witnesses  might  prove  an  instrument 
for  record,  there  seems  to  be  no  good  reason  why  several 
dumb  witnesses  should  be  indispensable  to  the  valid 
registration  of  an  instrument,  when  the  oath  of  only 
one  of  them  is  required  to  prove  the  deed.^* 

§  365.  Where  Witness  Signs  by  Making  His  Mark. — Un- 
der the  act  of  February  5,  March  17,  1811,  where  a  wit 
ness  who  made  his  mark  swore  "to  the  best  of  his  knowl- 
edge and  belief"  that  he  signed  as  a  subscribing  witness, 
it  was  held  sufficient  to  entitle  the  instrument  to  rec- 
ord.^» 

36  Craddock  v.   Merrill,   2   Tex.   495,  496. 

.37  Williams  v.  Walker,  2  Rich.  Eq.  291,  46  Am.  Dec.  53.  See 
Swamscott  Mac.  Co.  v.  Walker,  22  N.  H.  457,  55  Am.  Dec.  172,  35 
L.  R.  A.  321,  note.     And  see  post,  §§  378-391. 

38  Coryell  v.  Holmes,  2  U.  C.  674;  Craddock  v.  Merrill,  2  Tex. 
496.  The  reverse  is  held  in  Hendricks  v.  Huffmaster,  27  S.  W. 
778.  See,  also,  Cairrell  v.  Higgs,  1  U.  C.  56;  Dobbin  v.  Cordiner,  41 
Minn.  165,  16  Am.  St.  Rep.  683,  42  N.  W.  870,  4  L.  R.  A.  333;  Holmes 
V.  Coryell,  58  Tex.  685;  Wilson  v.  Simpson,  68  Tex.  312,  4  S.  W.  839. 

39  Stramler  v.  Coe,  15  Tex,  213. 


§§  366-369     PKOOF  OF  INSTRUMENTS  BY  WITNESSES.  166 

§  366.  Certificate  that  Instrument  was  "Duly  Proven  Be- 
fore Me"  Insufficient — But  where  the  chief  justice  of  the 
county  certifies  that  the  within  instrument  was  "duly 
proven  before  me  the  twentieth  day  of  February,  1836," 
it  was  not  sufficient  to  entitle  it  to  record.^^ 

§  367.  Necessary  to  State  that  Witness  Signed  at  Request 
of  Grantor  When. — Before  the  act  of  May  12,  July  13, 
1846,  it  was  not  necessary  for  a  subscribing  witness  to 
swear  that  he  signed  at  request  of  grantor."*^ 

§  368.  Signed  at  Request — Rule  at  Present  .Time — Sec- 
tion 8  of  the  act  of  May  12, 1846,*^  which  is  still  in  force, 
makes  a  distinction  in  those  cases  where  the  witness  is 
present  and  sees  the  instrument  signed,  and  those  where 
he  was  not  present  at  the  time  and  was  subsequently  re- 
quested to  witness  the  acknowledgment  of  the  grantor. 
In  the  former  it  was  not  necessary  that  he  should  swear 
that  he  signed  it  at  the  request  of  the  grantor;  in  the 
latter  it  is.^'**  The  presumption  is  that  the  subscribing 
witness  signed  at  the  request  of  the  grantor.*^ 

§  369.  Not  Necessary  to  Show  Witness'  Means  of  Knowl- 
edge— Where  a  subscribing  witness  swears  that  the 
grantor  sealed,  signed  and  delivered  the  deed  for  the 
purposes  and  considerations  therein  expressed,  and  tliat 
he  signed  it  as  a  witness  at  the  request  of  the  grantor, 
it  was  held  sufficient,  although  it  does  not  state  the  wit- 
ness' means  of  knowledge  of  the  fact,  whether  from  his 
seeing  the  grantor  sign  or  his  acknowledging  it.*^ 

40  Flemming  v.  Eeed,  37  Tex.  152.  But  see  Holliday  v.  Cromwell, 
26    Tex.    194. 

41  Downs  V.  Porter,  54  Tex.  59. 

42  P.  D.  5008;  H.  D.  279;  Eev.  Stats.,  art.  4622. 

43  Jones  V.  Bobbins,  74  Tex.  619,  12  S.  W.  824;  Downs  v.  Porter, 
54  Tex.  59;  Sowers  v.  Peterson,  59  Tex.  216;  Dorn  v.  Best,  15  Tex. 
65;  Deen  v.  Wills,  21  Tex.  645. 

44  Jones  V.  Eobbins,  74  Tex.  619,  12  S.  W.  S24;  Downs  v.  Porter, 
54  Tex.  59;  Sowers  v.  Peterson,  59  Tex.  216;  Dorn  v.  Best,  15  Tex. 
65;  Deen  v.  Wills,  21  Tex.  645. 

45  Stinnett  v.  House.  1  U.  C.  486. 


167  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.     §§  370-375 

§  370.  Means  of  Knowledge  Stated. — It  has  been  held 
elsewhere  that  the  witness  should  state  his  means  of 
knowledge  of  the  grantor's  signature;  the  bare  state- 
ment that  the  signature  is  in  the  grantor's  handwriting 
has  been  held  not  suflficient.'*^ 

§  371.  Must  Show  Witness  Saw  Grantor  Sign  or  Heard 
Him  Acknowledge. — But  it  is  held  that  proof  which  does 
not  show  that  the  witness  either  saw  the  grantor  sign 
the  deed  or  heard  him  acknowledge  its  execution  is  not 
in  compliance  with  our  statute,  and  was  properly  ruled 
out  of  evidence  as  a  recorded  instrument.'*'' 

§  372,  Not  Necessary  for  Witness  to  have  Seen  Execution. 
It  is  not  necessary  for  the  witness  to  see  the  execution 
of  the  instrument  if  the  grantor  acknowledges  it  to  him 
afterward ;  and  the  witness  is  not  required  to  testify  to 
its  date  or  the  date  of  his  signature  as  a  witness ;  neither 
does  its  second  acknowledgment  impair  its  validity.** 

§  373.  Saw  Firm  Name  Signed. — Proof  that  the  witness 
saw  the  firm  name  signed  without  stating  which  member 
signed  it  is  not  sufficient.*^ 

§  374.  Grantor's  Name  Instead  of  Attorney's  in  Certificate 
Fatal Where  a  deed  is  executed  by  A  through  his  at- 
torney in  fact  B,  and  the  proof  of  acknowledgment  is 
by  a  subscribing  witness,  who  swears  that  he  saw  A 
execute  the  deed  as  attorney  in  fact  for  B,  the  proof  is 
fatally  defective,  the  error  not  being  such  clerical  error 
as  can  be  considered  immaterial.^* 

§  375.  Clerical  Omission  not  Fatal  When. — In  1873,  a 
subscribing  witness  who  proved  up  a  deed  for  record 

46  Jackson  v.  V^aldron,  13  Wend.  178;  Carrier  v.  Hampton,  11  Ired, 
307. 

47  Pool  V.  .Jackson,  66  Tex.  382,  1  S.  W.  75.     See  post,  §  397. 

48  Ballard  v.  Perry,  28  Tex.  350.     See  post,  §  397. 

49  Baldwin   v.   Richardson,  33   Tex.   16. 

50  Cavit  V.  Archer,  52  Tex.  169. 


§§  376-378     PEOOF  OF  INSTEUMENTS  BY  WITNESSES.  168 

stated  that  lie  signod  as  a  witness  at  the  request  of 

',  and  does  not  disch)se  that  it  was  the  s^rantor 

who  made  the  request,  it  was  held  that  under  the  act  of 
May  12, 1846  (which  is  still  in  force),  that  the  certificate 
was  valid,  the  error  being  clerical.^^ 

C.     PEOOF,  BY  WHOM  TAKEN. 

§  376.  Generally. — It  will  be  seen  by  referring  to  the 
statutes  that  the  same  ofiflcers  who  are  authorized  to 
take  acknowledgments  are  also  authorized  to  take  the 
proof  of  instruments.^^ 

§  377.  Officer  Who  is  Subscribing  Witness  is  Qualified — 
An  officer  who  is  also  a  subscribing  witness  is  not  dis- 
qualified from  taking  the  proof  of  the  instrument  by 
the  other  subscribing  witness.®^ 

D.     PEOOF  OF  INSTEUMENTS  FOE  EECOED,  BY  WHOM  MADE. 

§  378.  By  Subscribing  Witnesses  Generally.— Proof  of  in- 
struments for  record  must  be  made  by  the  subscribing 
witnesses,  or  one  of  them  if  within  the  jurisdiction  of  the 
court  and  can  be  procured.^*  A  bystander  is  not  au- 
thorized to  prove  a  deed ;  it  must  be  done  by  a  subscrib- 
ing witness^^ — ^that  is,  unless  the  witnesses  are  beyond 
the  jurisdiction  of  the  court. ^^  By  sole  subscribing  wit- 
ness held  sufflcient.^''  Judge  attesting  is  subscribing 
witness.^* 

51  Sowers  v.  Peterson,  59  Tex.  220. 

52  See   chapters   20-27. 

53  Carpenter  v.  Dexter,  75  U.  S.  (8  Wall.)  513,  19  L.  ed.  426; 
Baird  v.  Evans,  58   Ga.  350. 

54  Gainer  v.  Cotton,  49  Tex.  117;  ante,  §  363;  Eiviere  v.  Wilkins, 
72  S.  W.  608.     See  post,  §§  409-439. 

55  McDaniel  v.  Needham,  61  Tex.  271. 

56  McDaniel  v.  Needham,  61  Tex.  271;  Eailway  Co.  v.  McEae,  82 
Tex.  616,  27  Am.  St.  Eep.  926,  18  S.  W.  672.  See,  also,  35  L.  E.  A. 
321,   note. 

57  Ante,   §   364. 

58  Ante,   §§   360-362. 


169  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  379-383 

§  379.  Where  There  were  No  Subscribing  Witnesses. — Un- 
der the  act  of  December  20,  1836,  proof  by  subscribing 
witnesses  was  not  in  all  cases  required.  In  some  in- 
stances proof  of  the  handwriting  of  the  signer,  where 
there  were  no  subscribing  witnesses,  by  any  person  who 
could  testify  to  same,  would  be  sufficient  to  entitle  the 
instrument  to  record.^® 

§  380.  Witness  Beyond  Jurisdiction  of  the  Court. — Under 
the  act  of  December  20,  1836,  proof  of  the  handwriting 
of  either  the  signer  (the  notary)  or  one  of  the  subscrib- 
ing witnesses,  where  the  subscribing  witnesses  were 
beyond  the  jurisdiction  of  the  court  or  officer,  by  any 
person  not  disqualified  by  law,  was  sufficient  proof  to 
entitle  the  deed  to  record.®^ 

§  381.  Act  of  May  12,  1846.— Under  the  act  of  May  12, 
1846,  proof  of  the  handwriting  of  the  grantor  and  one 
of  the  subscribing  witnesses  was  sufficient.^^ 

§  382.  Act  of  March  6,  1863.— Under  the  act  of  March 
6,  1863,  proof  of  the  handwriting  of  the  grantor  and  one 
of  the  subscribing  witnesses  was  sufficient  if  the  grantor 
signed  his  name,  but  if  he  made  his  mark,  then  proof 
of  the  handwritings  of  both  of  the  subscribing  witnesses 
was  required.®^ 

§  383.  Revised  Statutes  of  1879  and  1895.— Since  the 
adoption  of  the  Revised  Statutes  of  1879,  proof  of  the 
handwriting  both  of  the  grantor  and  one  of  the  subscrib- 
ing witnesses  was  sufficient  if  the  grantor  signed  his 
name,  but  if  he  signed  by  making  his  mark,  execution 
may  be  established  by  proof  of  the  handwriting  of  two 

09  Paschal  v.  Perez,  7  Tex.  358;  McKissick  v.  Colquhoiin,  18  Tex. 
152. 

60  Paschal  v.  Perez,  7  Tex.  358.  For  proof  by  proof  of  handwrit- 
ing, see  post,  §  440. 

61  See  post,  §  420. 

62  See  post,  §  465. 


§§  384-386     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  170 

subscribing  witnesses  and  the  place  of  residence  of  such 
witnesses  testifying. ^^ 

§  384.  Number  of  Witnesses  to  Prove  Handwriting  Re- 
quired— Under  the  above  statutes  any  competent  wit- 
nesses familiar  with  the  facts  to  be  proven  could  testify 
to  same,  but  since  the  passage  of  the  act  of  May  12, 1846, 
two  witnesses  have  been  required  to  prove  instruments 
for  record  by  proof  of  handwriting,  which  witnesses, 
prior  to  the  act  of  May  19,  1871,  had  to  be  disinterested 
witnesses,  and  possibly  so  still.**^  But  where  the  deed 
was  to  be  proven  for  admission  in  evidence  in  the  courts, 
it  might  be  proven  also  by  the  common-law  methods,  by 
the  testimony  of  one  witness,  or  even  by  circumstantial 
evidence,  and  since  the  act  of  February  5,  1840 ,  a  judg- 
ment so  obtained  would  be  entitled  to  registration.®^ 

E.     WHO  MAY  BE   SUBSCRIBING  WITNESSES. 

§  385.  General  Rule. — The  general  rule  seems  to  be 
that  persons  competent  to  testify  to  the  facts  concern- 
ing the  execution  of  the  instrument  are  qualified  to  act 
as  subscribing  witnesses.  In  those  states  where  interest 
in  the  transaction  is  a  disqualification  of  the  witness 
to  testify,  an  interested  party  cannot  be  a  subscribing 
witness ;  if  the  interest  does  not  disqualify  him,  he  may 
be  a  subscribing  witness. ®® 

§  386.     Held  that  Grantee  is  Incompetent  Witness It  is 

held  in  the  case  of  Donovan  v.  St.  Anthony  etc.  Co., 
8  N.  Dak.  585,  73  Am.  St.  Rep.  779,  80  N.  W.  772,  46  L. 
R.  A.  721,  that  the  grantee  is  disqualified  from  being  one 
of  the  subscribing  witnesses  by  reason  of  being  an  im- 

63  See   "Handwriting,"   post,    §§   440-470. 

64  See  Lewis  v.  Aylott,  45  Tex,  201;  Martin  v.  McAdams,  87  Tex. 
225,  27  S.  W.  255. 

65  See  post,  §§  455-470;  H.  D.,  art.  2771. 

66  Devlin  on  Deeds,  2d  ed.,  259.     Attesting  judge  as   subscribing 
witness,  see  ante,  §§  360,  362;  post,  §§  387,  389. 


171  PROOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  387-389 

mediate  party,  and  record  of  a  mortgage  witnessed  by 
him    does  not  operate  as  notice. ^^ 

§  387.  Interest  Disqualified  "Witness  When. — In  Texas, 
previous  to  the  act  of  May  19,  1871  (which  provided 
that  "in  the  courts  of  this  state  there  shall  be  no  exclu- 
sion of  any  witness  on  account  of  color,  nor  in  civil  ac- 
tions, because  he  is  a  party  to,  or  interested  in,  the  issue 
tried"),  interest  in  the  transaction  disqualified  wit- 
nesses from  testifying,  and  they  would  not  be  competent 
subscribing  witnesses.*^ 

§  388.  Idem. — Where  a  deed  executed  and  proven  for 
record  in  1868,  and  recorded  in  1874,  the  proof  being 
made  by  a  subscribing  witness  who  was  the  husband  of 
the  grantee,  was  objected  to  when  offered  in  evidence, 
on  the  ground  that  it  was  not  properly  authenticated 
for  record,  it  being  proved  for  record  prior  to  the  act 
of  May  19,  1871,  the  witness  being  an  interested  party, 
the  deed  being  practically  to  himself,  it  was  held  that 
as  he  would  not  be  competent  to  testify  in  court,  he  was 
not  qualified  as  a  subscribing  witness ;  the  deed  was  not 
properly  proved  for  record,  nor  admissible  as  a  recorded 
instrument.  The  court  found  it  unnecessary  to  decide 
in  this  case  whether  or  not  since  the  act  of  May  19, 1871, 
a  grantee  could  be  a  subscribing  witness.*^^  Interest 
disqualifies  witness  to  testify  to  handwriting  of  deceased 
subscribing  witnesses  where  proof  is  made  for  record.'^** 

§  389.  Interest  does  not  Disqualify  When. — But  subse- 
quent to  this  act  interest  would  not  disqualify  a  witness 
from  testifying,  except  as  to  transaction  with  a  deceased 
person,''^  and  it  seems  that  a  subscribing  witness  would 

67  See  this  case  for  a  full  brief  and  discussion  of  the  question. 

68  Hardin  v.  Sparks,  70  Tex.  431,  7  S.  W.  769. 

69  Hardin  v.  Sparks,  70  Tex.  431,  7  S.  W.  769;  Donovan  v.  St. 
Anthony  etc.  El.  Co.,  8  N.  Dak.  ,585,  73  Am.  St.  Rep.  779,  80  N.  W. 
772,  46  L.  R.  A.  721. 

70  See  post,  §§  443,  462,  465,  470. 

71  Gamble  v.  Butchee,  87  Tex.  643,  30  S.  W.  862;   Martin  v.  Mc- 


§§  390,  391     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  172 

not  be  disqualified  by  reason  of  interest  in  the  transac- 
tion. In  the  first  of  these  cases  it  was  held  that  the 
wives,  as  snliscribing  witnesses  to  a  will  devising  prop- 
erty to  their  husbands,  were  competent.  In  the  case  of 
Lewis  V.  Aylott,  45  Tex.  201,  the  court  says :  "The  better 
view  seems  to  be  that  the  act  (^lay,  19,  1871)  was  only 
intended  to  apply  to  ordinary  suits  in  courts  of  the 
state,  and  that  it  cannot  be  so  construed  to  apply  to 
ex  parte  proceedings,  or  proofs  of  wills,  deeds,  mort- 
gages, etc."  But  this  view  is  dicta  and  the  doctrine 
stated  is  limited  in  later  cases  to  apply  only  to  nuncupa- 
tive wills,  where  the  interested  party  would  attempt  to 
testify  as  to  transactions  with  the  deceased. '^^ 

§  390.  Where  One  Witness  Incompetent,  Handwriting  of 
Other  may  be  Proved — Where  a  deed  was  executed  and 
witnessed  in  1858  (or  before  the  act  of  May  19,  1871), 
it  was  held  that  the  husband  of  the  grantee  was  incom- 
petent to  act  as  a  subscribing  witness.  And  that  where 
one  of  the  subscribing  witnesses  is  incompetent  to  prove 
the  deed,  the  handwriting  of  the  deceased  witness  may 
be  proved  to  entitle  the  instrument  to  record. '^^ 

§  391.  Grantor's  Selection  and  Volunteer  Witnesses. — It 
is  clear  that  the  statute  contemplates  that  only  a  per- 
son of  grantor's  selection  is  a  competent  subscribing  wit- 
ness.''* The  certificate  should  show  that  witness  signed 
at  request  of  grantor,  though  it  seems,  for  public  policy, 
the  courts  have  limited  this  requirement  to  instances 
where  the  witness  does  not  see  the  execution  of  the  in- 
strument, holding  that  if  the  witness  sees  the  execution, 

Adams,  87  Tex.  225,  27  S.  W.  255;  Stephenson  v.  Stephenson,  6  Tex. 
Civ.  App.  529,  25  S.  W.  649. 

72  Martin  v.  McAdams,  87  Tex.  225,  27  S.  W.  255;  Gamble  v. 
Butchee,  87  Tex.  643,  30  S.  W.  862.  Handwriting  must  be  proved  by- 
disinterested  parties,  when,  post,  §  443.  Grantee  could  testify  as  to 
absence  of  witnesses,  post,  §  463. 

73  Cairrell  v.  Higgs,  1  U.  C.  56;  Harris  v.  Hoskins,  2  Tex.  Civ. 
App.  486,  22  S.  W.  252. 

74  Rev.  Stats.,  §  4622;  McDaniel  v.  Needham,  61  Tex.  272. 


173  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  392-394 

it  is  not  necessary  for  him  to  swear  that  he  signed  at 
the  request  of  the  grantor.'^  This  construction  would 
permit  a  volunteer  who  saw  the  execution  to  sign  as  a 
witness  and  prove  the  same  for  registration  without  the 
knowledge  or  consent  of  the  grantor/^ 

F.     WITNESS  MUST  BE  KNOWN  TO  OFFICEE. 

§  392.  Witness  Required  to  be  Known  When. — Since  the 
act  of  May  12,  1846,  the  statute  required  subscribing 
witnesses  to  be  known  to  the  officer  taking  the  proof, 
or  his  identity  must  be  proved  on  oath  of  a  credible  wit- 
ness.'"'' Though  prior  to  Revised  Statutes  of  1879, 
where  proof  was  made  by  a  subscribing  witness  the  pre- 
sumption would  be  that  he  was  known  to  officer,  even 
though  the  certificate  did  not  so  certify.'^* 

G.     CERTIFICATE    OF    PEOOF  BY  SUBSCRIBING  WITNESSES. 

§  393.  Must  Show  that  Witness  Known. — 1.  That  the 
witness,  naming  him,  was  known  to  the  officer  or  proved 

to  the  officer  on  oath  of  7^     Prior  to  act  of 

May  12,  1846,  the  statute  in  force  did  not  require  the 
certificate  to  show  that  the  witness  or  grantor  was 
known  to  officer.**' 

§  394.  Idem.—Under  the  act  of  May  12,  1846,**  it 
was  not  necessary  for  the  certificate  to  certify  that  the 
witness  was  known  to  the  officer.*^  But  since  the  tak- 
ing effect  of  the  Revised  Statutes  of  1879  (re-enacting 

75  Dorn  V.  Best,  15  Tex.  62;  Been  v.  Wills,  21  Tex.  642;  Jones  v. 
Robbins,  74  Tex.  619,  12  S.  W.  824. 

76  See  ante,  §§  L54-156. 

77  Driscoll  V.  Morris,  2  Tex.  Civ.  App.  603,  22  S.  W.  629,  10.53; 
Wren  v.  Rowland  (Tex.  Civ.  App.),  75  S.  W.  894.  See  post,  §§  393, 
394. 

78  Post,  §   394. 

79  Rev.  Stats.  1895,  art.  4623. 

80  See  Harvey  v.  Hill,  7  Tex.  593;  post,  §§  410-419;  Watkins  v. 
Hall,  57  Tex.  4;  ante,  §  139. 

81  Post,  §  422. 

82  Wren  v.  Howland  (Tex.  Civ.  App.),  75  S.  W.  894;  ante,  §  139. 


§§  395-397     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  174 

the  said  act  of  May  12,  1846,  and  adding  a  form  of  cer- 
tificate, certifying  as  to  the  identity  of  the  grantor  or 
subscribing  witness),  it  is  settled  that  the  certificate 
must  show  that  the  grantor  was  known  or  proved  to 
oflScer.®^  And  it  seems  apparent  that  the  same  rule  of 
construction  Avould  hold  as  to  the  certificate  where 
proof  is  made  by  subscribing  witnesses ;  i.  e.,  that  prior 
to  the  Kevised  Statutes  of  1879,  it  would  not  be  neces- 
sary for  the  certificate  to  show  that  the  witness  was 
known  or  proved  to  the  officer,  but  that  thereafter  it 
would  be.®^ 

§  395.  That  Witness  was  Sworn. — 2.  That  the  witness 
was  duly  sworn  by  the  officer. ^^ 

§  396.  That  Witness  Saw  Execution,  or  Heard  Acknowl- 
edgment and  was  Requested  to  Sign. — 3.  That  the  witness 
stated  on  oath  that  he  saw  the  grantor  execute  the  in- 
strument, or  that  the  grantor  acknowledged  in  his  pres- 
ence that  he  executed  the  same  for  the  purposes  and 
consideration  therein  expressed  and  that  he  had  signed 
the  same  as  ai  witness  at  the  request  of  the  grantor.®^ 

§  397.  Idem— Rule  Prior  and  Subsequent  to  1846. — Pre- 
vious to  the  taking  effect  of  the  act  of  May  12,  1846, 
it  was  not  necessary  for  the  certificate  to  show  that  the 
witness  swore  that  he  signed  as  a  witness  at  the  request 
of  the  grantor.^'^  But  subsequent  to  that  time,  where, 
the  certificate  shows  that  the  witness  swore  that  he  saw 
the  grantor  execute  the  instrument,  it  is  not  necessary 
for  it  to  show  that  he  signed  at  the  request  of  the 
grantor;  otherwise  it  is.  Article  4622  of  the  Revised 
Statutes  of  1895  makes  a  distinction  in  those  cases 

83  Davidson  v.  Wallingford,  88   Tex.  623,  32   S.   W.   1030;   McKie 
V.  Anderson,  78  Tex.  207,  14  S.  W.  576;  ante,  §  139. 

84  Wren  v.  Howland  (Tex.  Civ.  App.),  75  S.  W.  894. 

85  Rev.  Stats.,  art.  4622. 

86  Johnson  v.  Franklin  (Tex.  Civ.  App.),  76  S.  W.  611. 

87  Downs  V.  Porter,  54  Tex.  59. 


175  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  398-400 

where  the  witness  is  present  and  sees  the  instrument 
signed,  and  those  where  he  was  not  present  at  the  time 
and  was  subsequently  requested  to  witness  the  acknowl- 
edgment of  the  grantor.  In  the  former  it  is  not  neces- 
sary that  he  should  swear  that  he  signed  it  at  the  re- 
quest of  the  grantor;  in  the  latter  it  is.**  And  where 
the  witness  swears  that  the  grantor  "executed  the  same 
(deed)  in  his  presence,"  that  is  taken  as  being  equiv- 
alent to  the  witness  swearing  that  he  saw  the  execu- 
tion of  the  deed.*^ 

§  398.  Where  Witness'  Name  Appears  on  Deed  It  is  not 
Necessary  to  Certify  that  He  was  a  Subscribing  Witness. — 
Where  a  party  appeared  before  an  officer  and  made  oath, 
etc.,  but  did  not  say  he  was  subscribing  witness,  yet  it 
appearing  on  inspection  of  the  deed  that  he  was  one  of 
the  subscribing  witnesses,  it  was  held  to  be  substantially 
good.**^  But  if  the  oath  fails  to  show  the  presence  of 
the  witness  at  the  signing  of  the  deed,  it  should  show 
that  the  witness  signed  at  the  request  of  the  grantor.^^ 

§  399.  Alternative  Certificate. — But  the  certificate  must 
not  be  in  the  alternative.^^ 

§  400.  Irregular  Certificate. — Proof  made  by  a  subscrib- 
ing witness  who  swears  that  "the  grantor  signed,  sealed 
and  delivered  the  foregoing  deed  for  the  purposes 
therein  expressed,  and  that  he  signed  it  as  a  witness  at 
the  request  of  grantor,"  is  sufficient.®^ 

88  Jones  V.  Eobbins,  74  Tex.  619,  12  S.  W.  824;  Downs  v.  Porter, 
54  Tex.  64;  Dorn  v.  Best,  15  Tex.  65;  Been  v.  Wills,  21  Tex.  645. 

89  Jones  V.  Bobbins,  74  Tex.  619,  12  S.  W.  824;  Downs  v.  Porter, 
54  Tex.  64;  Dorn  v.  Best,  15  Tex.  65;  Deen  v.  Wills,  21  Tex.  645. 
And  see  McDaniel  v.  Needbam,  61  Tex'.  271. 

00  Deen  v.  Wills,  21  Tex.  646. 

91  Cox  V.  Bust  (Tex.  Civ.  App.),  29  S.  W.  808. 

92  Riley  V.  Pool,  5  Tex.  Civ.  App.  346,  24  S.  W.  85;  Harvey  v. 
Cummings,  68  Tex.  599,  5  S.  W.  513. 

93  Stinnett  v.  House,  1  U.  C.  486.     See  ante,  §§  157-164. 


§§  401-408     PEOOF  OF  INSTRUMENTS  BY  WITNESSES.  176 

§  401.  Official  Character. — 4.  Official  character  of  the 
officer  iiuist  bo  shown.'"^"* 

§  402.    Seal. — 5.  Official  seal  must  be  attached.®^ 

§  403.  Signature. — G.  Signature  of  the  officer  must 
be  appended.^^ 

§  404.  Purposes  and  Considerations. — Omission  of  "pur- 
poses and  considerations,  etc.,"  not  fatal. ^'' 

§  405.  "Execute"  Instead  of  "Subscribe." — ^"Execute"  in- 
stead of  "subscribe"  is  immaterial.^* 

§  406.  Other  Requirements  and  Force  and  Effect  of  Cer- 
tificate.— For  time,  place  of  certificate,  language,  venue, 
date,  signature,  official  character,  parol  evidence,  amend- 
ment of  certificate,  certificate  as  evidence,  certificate  of 
magistracy  and  conformity  and  conclusiveness,  errors 
and  omissions,  etc.,  see  "Certificate  of  Acknowledg- 
ment," ante,  chapter  7. 

§  407.  Form  of  Certificate  of  Proof  Controlled  by  What 
Law — The  form  and  substance  of  certificates  of  proof 
are  controlled  by  the  statutes  in  force  at  the  time  the 
certificate  was  made.^®  But  if  a  certificate  is  invalid 
at  the  time  it  is  made,  subsequent  laws  adopting  the 
form  used  will  not  cure  it.-^^** 

§  408.  Substantial  Compliance  with  Statute  Only  Required. 
While  our  statutes,  except  the  earlier  ones,  provide 
forms  to  be  used  for  certificates,  their  use  is  not  es- 

94  Ante,  §  133. 

95  Ante,  chapter  13. 

96  Ante,   §   132. 

97  Ante,   §   172. 

98  Dorn  V.  Best,  15  Tex.  62. 

99  Eev.  Stats.  1895,  art.  4661. 

100  Texas  Land  Co.  v.  Williams,  51  Tex.  51.  For  forms  under  dif- 
ferent acts,  see  post,  §§  413-416,  418,  419,  424,  426-428,  435,  453,  454. 


177  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  409-411 

sential  to  valid  certificates,  if  the  certificates  contain 
all  that  is  necessary  to  show  a  valid  acknowledgment. 
No  material  fact  should  be  omitted.  A  substantial  com- 
pliance with  the  statute  is  sufficient.^^* 

H.     STATUTORY    REQUIREMENTS    AND    FORMS   FOR     PROOF 
BY   SUBSCRIBING  WITNESSES.102 

§  409.  Decree  of  April  18,  1834 — Judges  to  be  Assisted  by 
Witnesses— Decree  No.  275  of  April  18,  1834,  of  Congress 
of  Coahuila  and  Texas^^^  required  judges  to  perform  ju- 
dicial acts  with  assisting  witnesses,  even  should  there 
be  a  notary  public  in  the  district  of  their  jurisdiction, 
provided  the  notary  is  unable  to  perform  said  act.  This 
act  remained  in  force  until  the  act  of  December  20,  1836. 

§  410.  Act  of  December  20,  1836io4— Chief  Justices  Author- 
ized to  Take  Proof. — Section  31,  in  providing  that  the 
chief  justices  of  the  county  court  shall  be  the  notaries 
public  authorized  them  to  receive  proof  or  acknowledg- 
ments of  deeds,  etc.,  and  attest  the  same  under  their 
seals  of  office,  to  wit — the  seal  of  the  county  court, 

§  411.  Clerk  Authorized  to  Record  on  Proof  by  One  Wit- 
ness— Section  35  provided  that  clerks  of  the  county 
courts  shall  be  the  recorders  for  their  respective  coun- 
ties, and  shall  record  all  deeds,  etc.,  provided  one  of  the 
witnesses  of  the  number  required  by  law  shall  swear  to 
the  signature  of  the  signer,  or  he  himself  shall  acknowl- 
edge the  same,  which  shall  be  certified  by  the  recorder 
and  form  part  of  the  record. *^^  Section  37  required 
proof  and  record  of  deeds,  etc.,  within  twelve  months 

101  Deen  v.  Wills,  21  Tex.  646;  Monroe  v.  Arleclge,  23  Tex.  480; 
Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Rep.  267;  Talbert  v.  Dull, 
70  Tex.  675,  8  S.  W.  530;  Johnsoii  v.  Thompson  (Tex.  Civ.  App.),  50 
S.  W.  1057;  Holliday  v.  Cromwell,  26  Tex.  194;  Livingston  v.  Ket- 
telle,  41  Am.  Dec.   168,   note.     See  ante,   §§   365-370,  372-375. 

102  For   proof   by   handwriting,   see    post,    §§    440-470. 

103  1  L.  T.  363. 

104  1  L.  T.  1215. 

105  H.  D.   2752. 

12 


§§  412-414     TEOOF   OF   TNSTEUMENTS   BY   WITNESSES.         178 

from  April  1,  1837,  but  the  part  requiring  record  by- 
April  1, 1838,  was  repealed  by  the  act  of  May  10, 1838.*^« 

§  412.     Proof  by  Two  Witnesses  or  Handwriting  of  One 

Section  38^^''  provided  that  deeds,  etc.,  before  they  can 
be  admitted  upon  record  must  be  proven  by  at  least  two 
subscribing  witnesses  if  living  in  the  county,  and  if  not 
so  living  in  the  county,  then  the  handwriting  shall  be 
proven  either  before  some  county  judge  or  before  the 
clerk  of  the  county  court  in  whose  office  such  record  is 
proposed  to  be  made,  and  in  all  such  cases  the  certificate 
of  any  county  judge  that  the  witness  appeared  before 
him  and  acknowledged  his  signature,  or  that  the  hand- 
writing of  the  same  was  duly  proven,  shall  be  sufficient 
evidence  to  authorize  the  clerk  of  the  county  court  to 
enter  such  deed  upon  record. 

§  413.  Certificates  and  Form  Under  This  Act. — There  is 
some  obscurity  as  to  when  certificates  are  required  un- 
der this  act.****     No  form  was  prescribed  for  proof. 

§  414.  Act  of  January  19,  1839 — Required  Certificate. — 
The  act  of  January  19,  1839  (taking  effect  from  pas- 
sage),*^** made  it  the  duty  of  county  clerks  to  record 
deeds,  etc.,  to  immovable  property  situated  in  their 
counties ;  provided  one  of  the  subscribing  witnesses  shall 
swear  to  the  signature  of  the  signer,  or  he  himself  shall 
acknowledge  the  same,  which  proof  or  acknowledgment 
shall  be  made  either  before  some  county  court  or  chief 
justice  of  the  same,  or  before  a  clerk  in  whose  office  such 
instrument  is  proposed  to  be  recorded,  a  certificate  of 
which  shall  be  made  upon  such  instrument  by  the  proper 
officer  and  become  a  part  of  the  record.  A  certificate 
was  required  but  no  form  was  prescribed.**** 

106  1  L.  T.  1478. 

107  H.  D.  2755. 

108  See  ante,  §§  220-224. 

109  2  L.  T.  52. 

110  See  ante,  §  227;  Holliday  v.  Cromwell,  26  Tex.  194;  McCarthy 
V.  Jolinson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100;  post,  §§  608,  609. 


179  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.     §§  415-417 

§  415.  Act  of  January  18,  1840— Statute  of  Frauds.— The 
statute  of  frauds  of  January  18,  1840,  required  convey- 
ances of  real  estate,  unless  upon  a  valuable  considera- 
tion or  possession  remains  with  donee,  to  be  acknowl- 
edged or  proven  for  record  in  the  manner  required  by 
law,  but  if  personal  property  only  is  conveyed,  then  by 
two  or  more  witnesses  and  recorded,  or  it  will  be  pre- 
sumed to  be  fraudulent.*^^  No  form  of  certificate  was 
prescribed. 

§  416.  Act  of  February  5,  1840 — Two  Witnesses — Certifi- 
cate.—Act  of  February  5,  1840  (taking  efPect  March  16, 
1840),**^  required  deeds,  etc.,  to  be  acknowledged,  or 
proved  by  two  witnesses  before  the  county  court  of  the 
county  in  which  the  land  conveyed  or  a  part  thereof 
lieth;  and  the  clerks  of  the  several  county  courts  and 
their  deputies  shall  admit  to  record  any  conveyances 
upon  the  acknowledgment  or  proof  on  oath  of  ac- 
knowledgment by  the  legal  number  of  witnesses  there- 
to made  in  the  offices  of  the  respective  clerks;  or  upon 
the  certificate  of  some  district  judge,  or  chief  justice  or 
notary  public  of  the  county,  with  the  seal  of  his  office 
annexed  that  the  execution  of  such  instrument  was  so 
proven.  No  form  was  provided  for  proof.  Section  6 
of  same  act  authorized  acknowledgment  before  two  jus- 
tices of  the  peace,  but  not  proof  before  them.^^^  Query, 
was  certificate  required  where  proof  was  made  before 
county  clerk  ?**^ 

§  417.  Act  of  February  5,  1841— Validates. — The  act  of 
February  5,  1841  (taking  effect  March  17,  1841)*^®  sec- 
tion 20,  validates  the  registration  of  conveyances,  pro- 
vided the  same  shall  have  been  proven  before  any  chief 
justice  of  the  county  court  or  before  any  notary  public 

111  2  L.  T.  203. 

112  2  L.  T.  327. 

113  See  post,  §§  614,  615. 

114  See  ante,  g"  228. 

115  2  L.  T.  633. 


§§  418,  419     PEOOr  OF  INSTRUMENTS  BY  WITNESSES.  180 

or  the  clerk  of  the  county  court  in  whose  office  such  rec- 
ord is  proposed  to  be  made,  by  one  or  more  of  the  sub- 
scribing witnesses  and  certified  by  such  officer,  any  con- 
flict in  existing  laws  to  the  contrary  notwithstanding. 

§  418.  Idem — Certificate  and  Proof — Section  21  of  said 
act  provided  that  every  deed,  etc.,  hereafter  to  be  made 
and  recorded  shall  be  duly  registered  in  the  office  of  the 
proper  county  upon  acknowledgment  or  proof  by  a  sub- 
scribing witness  before  the  register  or  clerk  of  the  county 
court  of  that  county,  or  chief  justice  or  notary  public 
thereof,  or  any  associate  or  chief  justice  of  the  supreme 
court,  and  certified  by  him  for  record;  and  if  any  such 
instrument  executed  abroad  shall  be  proved  by  two  sub- 
scribing witnesses  or  any  circuit  or  supreme  judge,  or 
chancellor  of  the  United  States  of  North  America,  cer- 
tified by  him  with  the  certificate  of  the  chief  magistrate 
of  the  United  States  as  to  the  official  character  of  him 
taking  the  proof,  and  the  great  seal  of  the  United  States 
thereto  annexed;  or  if  so  proven  before  any  judge  of  a 
superior  court  of  record,  or  any  such  court  of  any  other 
nation  or  kingdom,  or  certified  by  such  judge  or  the  rec- 
ord thereof  exemplified,  and  either  so  counter  certified 
by  the  chief  magistrate  of  such  other  nation,  under  the 
great  seal,  or  by  the  consul  of  this  republic  or  minister 
resident  there,  the  same  shall  be  admitted  to  record. 
It  required  acknowledgments  and  proof  to  be  certified 
but  prescribed  no  form.*-"^® 

§  419.  Act  of  May  8,  1846 — Commissioners  of  Deeds. — 
Act  of  May  8,  1846  (taking  effect  June  22,  1846),^^^  re- 
quired commissioners  of  deeds  to  take  acknowledgments 
and  proofs  of  instruments  for  record  in  the  manner  di- 
rected by  the  laws  of  this  state,  and  certified  by  the 
commissioner  taking  same  under  his  seal,  which  certifi- 
cate shall  be  indorsed  on  or  annexed  to  said  deed.     But 

116  See  ante,  §  229. 

117  2  L.  T.  1493. 


181  PEOOF  OF  INSTEUMENTS  BY  WITNESSES.     §§  420,  421 

it  provided  no  form  of  certificate.*^*     This  act  was  not 
repealed  by  the  act  of  May  12,  1846."^ 

§  420.  Act  of  May  12,  1846— Proof  and  Acknowledgment, 
How  Made — Section  8  of  the  act  of  May  12,  1846  (taking 
effect  July  13,  1846)/^^  provided  that  the  proof  of  an 
instrument  shall  be  made  by  one  or  more  of  the  sub- 
scribing witnesses  personally  appearing  before  some  of- 
ficer authorized  to  take  such  proof,  and  stating  on  oath 
that  he  or  they  saw  the  grantor  or  person  who  executed 
such  instrument  subscribe  the  same,  or  that  the  grantor 
or  person  who  executed  such  instrument  of  writing  ac- 
knowledged in  his  or  their  presence  that  he  had  sub- 
scribed and  executed  the  same  for  the  purpose  and  con- 
sideration therein  stated,  and  that  he  or  they  had  signed 
the  same  as  a  witness  at  the  request  of  the  grantor  or 
person  who  executed  such  instrument;  and  the  officer 
taking  such  proof  shall  make  a  certificate  thereof,  sign 
and  seal  the  same  with  his  official  seal.  This  section  is 
still  in  force,  with  the  words  "subscribed  and"  omitted 
in  Eevised  Statutes  of  1879. 

§  421.  Handwriting  Proved. — Section  9  provided  that 
if  the  subscribing  witnesses  are  dead,  or  their  place  of 
residence  unknown,  or  when  they  reside  out  of  the  state, 
an  aC^davit  thereof  may  be  made  and  attached  to  such 
instruncent ;  after  which  it  may  be  proved  for  record,  by 
proof  of  the  handwriting  of  the  grantor  and  at  least  one 
of  the  subscribing  witnesses,  by  depositions  of  two  or 
more  disinterested  persons  in  T\Titing  attached  to  such 
instruments,  and  the  officer  shall  make  a  certificate 
thereof.  The  act  of  March  6,  1863,  amended  this  by 
adding,  "The  grantor  or  person  who  executed  such  in- 
strument signed  by  making  his  mark,  by  the  proof  of 
the  handwriting  of  both  the  subscribing  witnesses."*^* 

118  Deen  v.  Wills,  21  Tex.  645. 

119  Monroe  v.  Arledge,  23  Tex.  481;  Wren  v.  Rowland  (Tex.  Civ. 
App.),  75  S.  W.  894. 

120  2  L.   T.   1544. 

121  See  post,  §§  440-453. 


§§  422-425     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  182 

§  422.  Grantor  Unknown — Sectioii  10  of  said  act  pro- 
yides  that  if  the  grantor  or  subscribing  witnesses  ap- 
pearing to  acknowledge  or  prove  the  deed,  etc.,  is  un- 
known to  the  officer,  his  identity  shall  be  proven  to  such 
officer ,  which  proof  may  be  made  by  witnesses  known  to 
the  officer,  or  affidavit  of  grantor  or  subscribing  witr 
nesses,  such  officer  shall  be  satisfied  therewith.  Which 
proof  shall  be  indorsed  on  the  instrument. •'^^^ 

§  423.  Certificate  Attested — Section  2  provided  that 
proof  of  every  instrument  for  record  shall  be  taken  by 
some  one  of  the  following  officers : 

1.  Within  the  state  before  some  notary  public,  or 
clerk  of  the  county  court  of  any  county  in  the  state. 

2.  Within  United  States  or  their  territories,  before 
some  judge  of  a  court  of  record  having  a  seal. 

3.  When  without  the  United  States,  before  some 
public  minister,  charge  d'affaires  or  consul  of  the 
United  States,  and  in  all  cases  the  certificate  of  proof 
shall  be  attested  under  the  official  seal  of  the  officer  tak- 
ing same. 

§  424.  Presumption  Where  No  Certificate  of  Proof  of  Iden- 
tity.— Where  no  certificate  of  proof  of  identity  is  at- 
tached, the  presumption  would  be,  it  seems,  that  the 
witness  was  known  to  the  officer. ^^^  Not  necessary  for 
certificate  to  state  that  grantor  was  known  to  officer  un- 
der this  article.*^*     Signed  at  request  of  grantor.^^^ 

§  425.  No  Form  Provided — This  act  provided  no  form 
of  certificate  of  proof. ^^^ 

122  See  ante,   §   393. 

123  Driscoll  V.  Morris,  2  Tex.  Civ.  App.  603,  22  S.  W.  629,  1053; 
Hill  V.  Smith,  6  Tex.  Civ.  App.  312,  25  S.  W.  1080;  Cook  v.  Cook, 
5  Tex.  Civ.  App.  30,  23  S.  W.  927. 

124  Wren  v.  Howland  (Tex.  Civ.  App.),  75  S.  W.  894. 

125  See  ante,  §  397. 

126  Deen  v.  Willa,  21  Tex.  645. 


183  PROOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  426-429 

§  426.  Act  of  February  9,  1860— Validates. — The  act  of 
February  9,  1860,  validates  all  deeds,  etc.,  which  shall 
have  been  proven  by  one  or  more  of  the  subscribing  wit- 
nesses before  any  chief  justice,  or  associate  justice  or 
clerk  of  the  county  court,  or  notary  public  in  any  county 
in  Texas,  or  judge  of  the  department  of  the  Brazos;  or 
any  primary  judge  or  judge  of  the  first  instance  in  1835 
and  1836 ;  and  certified  by  such  officer  whether  the  proof 
was  made  before  such  officer  of  the  county  where  such 
instrument  should  have  been  recorded  or  not.  And  all 
such  instruments  so  proved  or  acknowledged  and  after- 
ward recorded  or  certified  copies  thereof  shall  be  evi- 
dence in  all  the  courts  of  this  state.^^'' 

§  427.  Acts  of  1861,  1862,  1866,  1871.— The  acts  of 
April  6,  1861,'-^  January  11,  1862,^^  November  13, 
1866,^^^  and  May  6,  1871,^^^  did  not  change  the  mode  of 
proof  by  witnesses,  but  designates  different  officers  be- 
fore whom  proof  may  be  made. 

§  428.     Act  of  1863— Where  Grantor  Makes  His  Mark 

The  act  of  March  6, 1863  (taking  effect  from  passage),^^^ 
amended  section  9  of  act  of  May  12,  1846,  by  adding  the 
clause,  "Or  when  the  grantor  or  person  who  executed 
such  instrument  signed  by  making  his  mark  of  the  proof 
of  the  handwriting  by  both  of  the  subscribing  wit- 
nesses. 


JJ133 


§  429.  The  Act  of  August  13,  1870i34_Validates.— This 
act  validates  proof  of  instruments  made  by  one  or  more 
of  the  subscribing  witnesses  before  any  county  judge  in 
any  county  in  the  state. 

127  As  to  effect  of  this  act,  see  post,  §§  1032-1037. 

128  5  L.  T.  373. 

129  5  L.  T.  501. 

130  5  L.  T.  1128. 

131  6  L.  T.  979. 

132  5  L.  T.  614. 

133  See  Vasquez  v.  Texas  Loan  Agency  (Tex.  Civ.  App.),  45  S.  W, 
942. 

134  6  L.  T.  251. 


§§  430-433     PEOOF  OF  INSTRUMENTS  BY  WITNESSES.  184 

§  430.  Act  of  May  19,  1871i35_witness  not  Disqualified 
by  Interest. — This  act  provides  that  in  the  courts  of  this 
state  there  sliall  be  no  exclusion  of  any  witness  on  ac- 
count of  color,  nor  in  civil  actions,  because  he  is  a  party 
to,  or  interested  in,  the  issue  tried. 

§  431.  Act  of  April  27,  1874i=^«— Validates.— This  act 
validates  the  registration  of  instruments  if  proven  in 
the  manner  prescribed  by  law  without  the  state,  and 
within  the  United  States  and  their  territories,  before 
any  one  of  the  officers  in  such  cases  now  authorized  by 
law  to  make  such  proof. 

§  432.  Revised  Statutes  of  1879  and  1895— Proof  by  Sub- 
scribing Witness — Section  8  of  act  of  1846,  re-enacted  as 
article  4622  of  the  Revised  Statutes  of  1895  and  article 
4314  of  the  Revised  Statutes  of  1879 1^^''  "The  proof  of 
any  instrument  of  writing  for  the  purpose  of  being  re- 
corded shall  be  by  one  or  more  of  the  subscribing  wit- 
nesses personally  appearing  before  some  officer  author- 
ized to  take  such  proof,  and  stating  on  oath  that  he  or 
they  saw  the  grantor  or  person  who  executed  such  in- 
strument subscribe  the  same,  or  that  the  grantor  or 
person  who  executed  such  instrument  of  writing  ac- 
knowledged in  his  or  their  presence  that  he  had  executed 
the  same  for  the  purposes  and  consideration  therein 
stated,  and  that  he  or  they  had  signed  the  same  as  wit- 
nesses at  the  request  of  the  grantor  or  person  who  ex- 
ecuted such  instrument;  and  the  officer  taking  such 
proof  shall  make  a  certificate  thereof,  sign  and  seal  the 
same  with  his  official  seal." 

§  433.  Grantor  Known  or  Proven — Revised  Statutes  of 
1879  and  1895,  re-enacted  as  section  10  of  the  act  of 
May  12,  1846,  but  the  verbiage  of  section  10  is  changed 
to  read  as  follows :  "The  proof  by  a  subscribing  witness 

135  6  L.  T.  1010. 

136  P.  D.  152. 

137  P.  D.  5008. 


185  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  434,  435 

must  be  by  some  one  personally  known  to  the  officer 
taking  the  proof  to  be  the  person  whose  name  is  sub- 
scribed to  the  instrument  as  a  witness,  or  must  be  proved 
to  be  such  by  the  oath  of  a  credible  witness,  which  fact 
shall  be  noted  in  the  certificate."-^^* 

§  434.  Prior  to  Revised  Statutes  of  1879. — Previous  to 
the  adoption  of  the  Revised  Statutes  of  September  1, 
1879,  it  was  not  necessary  for  the  certificate  to  show 
that  the  witness  was  known  to  the  officer,^^^  but  since 
then  it  is.*^*^ 

§  435.  Form  of  Certificate — The  first  form  of  certifi- 
cate provided  is  the  present  statutory  form  adopted 
September  1,  1879,  article  4316  of  the  Revised  Statutes 
of  1879  and  article  4624  of  the  Revised  Statutes  of  1895, 
to  wit: 

"The  certificate  of  the  officer,  where  the  execution  of 
the  instrument  is  proved  by  a  witness,  must  be  sub- 
stantially in  the  following  form : 

"State  of , 


County  of 

"Before  me  — • [here  insert  the  name  and  char- 
acter of  the  officer],  on  this  day  personally  appeared 

— — ;  known  to  me   [or  proven  to  me  on  oath  of 

-],  to  be  the  person  whose  name  is  subscribed 


a.s  a  witness  to  the  foregoing  instrument  of  writing,  and 
after  being  duly  sworn  by  me  stated  on  oath  that  he 

gaw ,  the  grantor  or  person  who  executed  the 

foregoing  instrument,  subscribe  the  same  [or  that  the 
grantor  or  person  who  executed  such  instrument  of 
writing  acknowledged  in  his  presence  that  he  had  exe- 
cuted the  same  for  the  purposes  and  consideration 
therein  expressed],  and  that  he  had  signed  the  same  as  a 

138  See  ante,  §  422. 

139  See  ante,  §  139. 

140  Wren  v.  Howland   (Tex.  Civ.  App.),  75  S.  W.  894.     See  ante, 
§  393. 


§§  436,  437     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  186 

witness  at  the  request  of  the  grantor  [or  person  who 
executed  the  same]. 

^'Given  under  my  hand  and  seal  of  office  this day 

of  — ,  A.  D. . 

"[Seal]  _."i4i 

§  436.  Proof  of  Handwriting. — Revised  Statutes  of 
1879,  article  4317  (took  effect  September  1,  1879),  and 
Revised  Statutes  of  1895,  article  4625 :  "The  execution 
of  an  instrument  may  be  established  for  record  by  proof 
of  the  lianchvritmg  of  the  grantor,  and  at  least  one  of 
the  subscribing  witnesses  in  the  following  cases : 

"1.  When  the  grantor  and  all  the  subscribing  wit- 
nesses are  dead. 

"2.  When  the  grantor  and  all  the  subscribing  wit- 
nesses are  nonresidents  of  this  state. 

"3.  When  the  place  of  their  residence  is  unknotvn  to 
the  party  desiring  the  proof,  and  cannot  be  ascertained. 

"4.  When  the  subscribing  witnesses  have  been  con- 
victed of  felony y  or  have  become  of  unsound  mind,  or 
have  otherwise  become  incompetent  to  testify. 

"5.  When  all  the  subscribing  witnesses  to  an  instru- 
ment are  dead  or  are  nonresidents  of  this  state,  or  when 
their  residence  is  unknown,  or  when  they  are  incompe- 
tent to  testify,  and  the  grantor  in  such  instrument  re- 
fuses to  acknowledge  the  execution  of  the  same  for  rec- 
ord." 

§  437.  Facts  to  be  Proven. — Revised  Statutes  of  1879, 
article  4318  and  Revised  Statutes  of  1895,  article  4626 : 
"The  evidence  taken  under  the  preceding  article  must 
satisfactorily  prove  to  the  officer  the  following  facts : 

"1.  The  existence  of  one  or  more  of  the  conditions 
mentioned  therein;  and, 

"2.     That   the   tvitness  testifying   knew    the   person 

141  For  construction  and  repeal  of  statutes,  see  "Final  Title," 
ante,  §§  107-110. 


187  PROOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  438-440 

whose  name  purports  to  be  subscribed  to  the  instrument 
as  a  party,  and  is  well  acquainted  with  his  signature, 
and  that  it  is  genuine;  and, 

"3.  That  the  ivitness  testifying  personally  knew  the 
person  who  subscribed  the  instrument  as  a  tcitness,  and 
is  well  acquainted  with  his  signature^  and  that  it  is 
genuine;  and, 

"4.  The  place  of  residence  of  the  loitness  testify- 
ing.'^'' 

§  438.  Where  Instrument  Signed  by  Mark. — Act  of 
March  6,  1863,  Revised  Statutes  of  1879,  article  4319, 
and  Revised  Statutes  of  1895,  article  4627 :  "When  the 
grantor  or  person  who  executed  the  instrument  signed 
the  same  by  making  his  mark,  and  when  also  one  or 
more  of  the  conditions  mentioned  in  article  4625  exists, 
the  execution  of  any  such  instrument  may  be  estab- 
lished by  proof  of  the  handvyriting  of  two  subscribing 
imtnesses  and  of  the  place  of  residence  of  such  witnesses 
testifying." 

§  439.  Number  of  Witnesses.— Act  of  March  6,  1863, 
Revised  Statutes  of  1879,  article  4320,  and  Revised  Stat- 
utes of  1895,  article  4628 :  "The  'proof  mentioned  in  the 
three  preceding  articles  must  be  made  by  the  deposition 
or  aflQdavit  of  two  or  more  disinterested  persons  in  writ- 
ing; and  the  officer  taking  such  proof  shall  make  a  cer- 
tificate thereof,  and  sign  and  seal  the  same  with  his 
official  seal,  which  proofs  and  certificate  shall  be  at- 
tached to  such  instrument."*^ 

I.     PROOF  OF  INSTRUMENTS  BY  PROOF  OF  HANDWRITING. 

§  440.  What  Law  in  Force. — The  proof  of  instruments 
for  record  by  subscribing  witnesses  not  usually  being 
made  contemporaneously  with  the  signing  of  the  instru- 
ment, it  often  happens  that  it  will  be  signed  while  one 

142  For  construction  and  repeal  of  statutes,  sec  "Final  Title, 
ante,   §§   107-110. 


§§  441-443     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  188 

law  is  in  force  and  proven  for  registration  under  an- 
other law.  A  statute  changing  the  mode  of  proof  of  an 
instrument  would  not  affect  the  right  but  only  the  rem- 
edy for  it,  and  would  be  valid  if  a  reasonable  remedy 
remained.  While  it  is  not  at  all  times  clear  whether 
these  statutes  requiring  proof,  by  certain  proofs  of  hand- 
writing, are  repealed  by  subsequent  ones,  it  appears  that 
the  courts  have  considered  the  former  repealed  where 
another  method  of  proof  is  provided  in  a  later  statute, 
and  require  the  proof  to  conform  to  the  latter. ^*^ 

§  441.  Proof  Must  Conform  to  Statute  in  Force  at  Time 
Proof  Made. — In  the  case  of  Harris  v.  Hoskins,  2  Tex. 
Civ.  App.  486,  22  S.  W.  251,  where  the  witnesses  signed 
while  the  act  of  1836  was  in  force,  and  the  deed  was 
proven  for  record  while  the  present  law  was  in  force  by 
proof  of  the  handwriting  of  a  single  witness,  it  was  held 
that  it  was  not  properly  proven  for  record,  but  admis- 
sible in  evidence.  And  in  the  case  of  Waters  v.  Spof- 
ford,  58  Tex.  121,  where  a  deed  was  witnessed  while  the 
law  of  1836  was  in  force,  and  proven  while  the  law  of 
1846  was  in  force,  the  proof  made  in  compliance  with 
the  latter  law  was  held  sufficient.*"*^ 

§  442.  Proof  for  Record  by  Proof  of  Handwriting. — When 
the  proof  is  made  for  registration  the  statute  must  be 
complied  with  as  to  the  number  of  signatures  and  the 
particular  signatures  and  the  character  of  evidence, 
etc.,  that  are  required  to  be  proven.  When  it  is  made 
for  admission  in  evidence  the  common-law  method  of 
proof  is  sufficient. *^^ 

§  443.  Must  be  Proved  by  Persons  Authorized  by  Statute. 
Where  the  instrument  is  proven  for  record,  proof  of 
handwriting  must  be  made  by  the  person  so  authorized 
by  the  statute.     For  instance,  since  the  taking  effect  of 

143  Post,  §§  441,  1053. 

144  Post,  §   1053. 

145  Harris  v.  HoskinSj  2  Tex.  Civ.  App.  486,  22  S.  W.  251. 


189  PEOOF  OF  IXSTEUMENTS  BY  WITNESSES.     §§444,445 

the  act  of  May  12,  July  13,  1846,  proof  of  the  handwrit- 
ing of  the  grantor  and  at  least  one  of  the  subscribing 
witnesses  must  be  made,  and  made  by  at  least  two  disin- 
terested witnesses.**®  While,  to  make  it  admissible  in 
evidence,  proof  of  the  single  signature  of  the  grantor 
or  one  of  the  witnesses  by  an  interested  party,  the  proper 
predicate  being  laid,  would  be  sufficient.*'*'' 

§  444.  Where  Witness  is  Interested. — The  act  of  May  19, 
1871,*^**  provided  that  "No  person  shall  be  incompetent 
to  testify  on  account  of  color,  nor  because  he  is  a  party 
to  a  suit  or  proceeding,  or  interested  in  the  issue  tried." 
Query,  Did  this  apply  to  testimony  in  the  courts  only 
or  did  it  also  authorize  proof  for  registration  by  inter- 
ested witnesses?**^ 

§  445.  Where  Witness  is  Grantor  or  Grantee. — Where  the 
grantor  had  no  interest,  it  was  held  that  he  was  a  com- 
petent witness  to  prove  the  execution  of  the  instrument 
when  offered  in  evidence  without  accounting  for  the  ab- 
sence of  the  subscribing  witnesses.*^®  Under  the  pres- 
ent law,*®*  since  interest  no  longer  disqualifies,  it  seems 
that  for  admission  in  evidence  it  might  be  proven  by 
the  grantor,  unless  it  be  a  transaction  with  a  deceased 
under  some  circumstances.  But  the  grantee  cannot  tes- 
tify as  to  the  execution  of  an  instrument  without  ac- 
counting for  the  absence  of  the  subscribing  witnesses.*®^ 
Where  one  witness  was  disqualified,  the  handwriting  of 
the  deceased  witness  might  be  proven  to  entitle  the  in- 
strument to  record.*®^ 

146  Waters   v.   Spofford,   58   Tex.   122. 

147  Harris  v.  Hoskins,  2  Tex.  Civ.  App.  486,  22  S.  W.  251;  Lang 
V.  Dougherty,  74  Tex.  229,  12  S.  W.  29. 

148  6  L.  T.  1010;  P.  D.  6826. 

149  See  Hardin  v.  Sparks,  70  Tex.  431,  7  S.  W.  769;  Lewis  v. 
Aylott,  45  Tex.  201;  Martin  v.  McAdams,  87  Tex.  225,  27  S.  W.  255; 
Gamble  v.  Butchee,  87  Tex.  643,  30  S.  W.  862. 

150  White  V.  Ilolliday,  20  Tex.  688;  Sample  v.  Irwin,  45  Tex.  573. 

151  Act  of  May   19,   1871,  p.   108. 

152  Wiggins  V.  Fleishel,  50  Tex.  62.     See  notes,  35  L.  E.  A.  321. 

153  Cairrell  v.  Higgs,  1  U.  C.  56. 


§§  446-449     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  190 

§  446.  Ancient  Instrument. — Where  a  deed  is  over 
thirtj-five  years  old,  the  death  of  the  subscribing  wit- 
nesses will  be  presumed  so  as  to  admit  proof  of  hand- 
writing.*^* 

§  447.  Predicate  for  Secondary  Evidence. — An  affidavit 
that  the  residence  of  the  subscribing  witness  was  un- 
known, without  stating  that  diligent  inquiry  had  been 
made,  was  insufficient  as  a  predicate  for  the  secondary 
evidence  of  proof  of  handwriting.*^^ 

§  448.  Most  Satisfactory  Proof. — In  Hanley  v.  Gaudy, 
28  Tex.  211,  91  Am.  Dec.  315,  decided  in  the  year  1866, 
it  was  held  that  the  most  satisfactory  proof  of  the  sig- 
nature or  handwriting,  where  the  grantor  is  not  compe- 
tent to  testify,  is  proof  by  a  (subscribing)  witness  who 
saw  him  sign  it  and  is  able  to  identify  it;  the  next  is 
where  the  witness  is  familiar  with  the  grantor's  signa- 
ture by  having  seen  him  write  or  received  letters  from 
him.  But  proofs  by  experts  from  comparison  of  hand- 
writings where  the  witness  has  had  no  previous  ac- 
quaintance with  it  through  having  seen  him  write,  etc., 
is  inadmissible.  This  is  the  English  rule  and  the  one 
adopted  in  many  of  the  states.  It  was  also  held  in  that 
case  that  copies,  admitted  or  proven  to  be  genuine  by 
the  most  satisfactory  evidence,  may  go  to  the  jury  for 
them  to  make  the  comparison  of  the  handwritings. 

§  449.  Proof  of  Handwriting  by  Comparison. — At  this 
time  and  ever  since  the  act  of  August  28,  1856,  took 
effect  February  1,  1857,*^**  the  Code  of  Criminal  Pro- 
cedure has  provided  that:  "It  is  competent  in  every 
case  to  give  evidence  of  handwriting  by  comparison 
made  by  experts  or  by  the  jury ;  but  proof  by  comparison 
only  shall  not  be  sufficient  to  establish  the  handwriting 
of  a  witness  who   denies  his   signature  under  oath." 

154  Hollis  V.  Dashiell,  52  Tex.  187. 

155  Sample  v.  Irwin,  45  Tex.  573. 

156  Rev.    Stats.,   Code   Grim.   Proc.   794. 


191  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  450-453 

This  rule,  from  the  decisions,  seems  not  to  have  been 
applicable  to  civil  cases.*^'' 

§  450.  Rule  Modified. — But  this  above  rule,  estab- 
lished in  Hanley  v.  Gandy,  has  been  somewhat  modified 
by  the  later  Texas  cases.  It  is  held  in  Kennedy  v.  Up- 
shaw,  G4  Tex.  420,  that  experts  may  give  opinion  on 
handwriting  by  comparison  with  genuine  papers  al- 
ready in  evidence.  Also,  in  Wagoner  v.  Euply,  69  Tex. 
704,  7  S.  W.  80,  and  Smith  v.  Caswell,  67  Tex.  573,  4 
S.  W.  80.  But  papers  not  connected  with  the  case  were 
not  allowed  for  the  purpose  of  comparison.  ^^^ 

§  451.  Certificates  of  Proof  by  Proof  of  Handwriting.— 
For  time,  place  of  certificate,  language,  venue,  date, 
signature,  official  character,  parol  evidence,  amendment 
of  certificate,  certificate  as  evidence,  certificates  of  mag- 
istracy and  conformity  and  conclusiveness  of  certificate, 
see  "Certificates  of  Acknowledgments,"  ante,  chapter  7. 

§  452.  Substantial  Compliance  only  Necessary. — The 
statutes  have  provided  no  forms  of  certificates  of  proof 
by  proof  of  handwritings.  And  a  substantial  compli- 
ance with  the  statute  is  sufficient.^^^ 

§  453.  Valid  Forms.— The  following  forms  of  certifi- 
cate were  held  to  be  sufficient  under  the  law  in  force  in 
1854  (which  was  in  force  from  July  1,  1846,  to  the  pres- 
ent time,  except  as  to  witnesses  who  signed  by  making 
their  marks),  to  wit: 

157  Sample  v.  Irwin,  45  Tex.  573;  Hanley  v.  Gandy,  28  Tex.  211. 

158  Talbot  V.  Dillard,  22  Tex.  Civ.  361,  54  S.  W.  407;  Cook  v. 
First  Nat.  Bank  (Tex.  Civ.  App.),  33  S.  W.  999.  For  notes  on  expert 
testimony  as  to  handwriting,  see  12  L.  E.  A.  456.  And  Williams  v. 
Conger,  125  U.  S.  397,  8  Sup.  Ct.  Kep.  933,  31  L.  ed.    778. 

159  Deen  v.  Wills,  21  Tex.  646;  Monroe  v.  Arledge,  23  Tex.  480; 
Belcher  v.  Weaver,  46  Tex.  294,  26  Am.  Rep.  267;  Talbert  v.  Dull, 
70  Tex.  675,  8  S.  W.  530;  Johnson  v.  Thompson  (Tex.  Civ.  App.),  50 
S.  W.  1057.     See  "Statutory  Requirements,"  post,  §§  455-470. 


§  454  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.  192 

"State  of  Texas,  i 

County  of  San  Augustine.  C 

"Before  me,  the  undersigned  notary  public,  in  and 
for  the  said  county  and  state,  personally  came  Otis  M. 
Wheeler,  to  me  well  known,  and  made  oath  that  Henry 
G.  Richardson,  one  of  the  subscribing  witnesses  to  the 
annexed  deed,  has  departed  this  life,  and  that  the  other 
witness,  D.  N.  Marange,  if  living,  he  believes  resides 
out  of  the  state  of  Texas,  the  place  of  his  residence  be- 
ing unknown  to  him. 

"OTIS  M.  WHEELER. 

"Sworn  to  and  subscribed  before  me  this  8th  day  of 
July,  1854,  certifying  hereto  witness  my  hand  and  offi- 
cial seal. 

"[Seal]  P.  N.  McKEE,  Not.  Pub.  S.  A.  0." 

§  454.     Idem. 

"The  State  of  Texas, 

County  of  San  Augustine. 

"Before  me,  the  undersigned  notary  public  in  and 
for  said  county  and  state  aforesaid,  personally  came 
Travis  G.  Brooks  and  James  A.  Chaffin,  to  me  well 
known,  made  oath  that  they  were  well  acquainted  with 
the  handwriting  and  signature  of  Charles  M.  Gould, 
the  grantor,  and  Henry  G.  Richardson,  one  of  the  sub- 
scribing witnesses  to  the  annexed  deed,  from  having 
frequently  seen  them  write  and  sign  their  names,  and 
that  they  verily  believe  the  signatures  of  the  said  Gould 
and  the  said  Richardson  as  subscribed  to  said  deed  to  be 
true  and  veritable  and  genuine  handwriting  and  signa- 
tures. 

"J.   A.   CHAFFIN. 

"T.  G.  BROOKS. 

"Sworn  to  and  subscribed  before  me  this  8th  day  of 
July,  1854."^«*> 

160  Waters  v.  Spofford,  58  Tex.  122.     And  see  post,   §§  466-469. 


193  PROOF  OF  INSTEUMENTS  BY  WITNESSES.     §§455,456 

J.     STATUTES   AND    NOTES    CONCERNING   PROOF   BY   PROOF 
OF  HANDWRITING. 

§  455.  The  Act  of  December  20,  1836  (Taking  Effect  from 
Passage). ^*^* — This  act  provided  that  titles,  etc.,  for  rec- 
ord must  be  proven  by  at  least  two  subscribing  wit- 
nesses, if  living  in  the  county,  and  if  not  living  in  the 
county,  then  the  handwriting  shall  be  proven  either  be- 
fore some  county  judge  or  before  the  clerk  of  the  county 
court  in  whose  office  such  record  is  proposed  to  be 
made;  and  in  all  cases  the  certificate  of  any  county 
judge  that  the  witness  appeared  before  him  and  ac- 
knowledged his  signature,  or  that  the  handwriting  of 
the  same  was  duly  proven,  shall  entitle  it  to  record. 

§  456.  Handwriting  of  Whom — Certificate. — Under  this 
act,  it  is  difficult  to  determine  whether  the  handwriting 
of  the  signer  or  the  witnesses  must  be  proven.  Under 
the  last  clause,  proof  of  the  handwriting  of  a  single  wit- 
ness would  be  sufficient;  under  the  first,  proof  of  the 
handwriting  of  the  grantor  would  be  sufficient.  ^^^ 
Testimonios  (second  originals),  etc.,  were  admitted  on 
proof  of  the  signatures  of  the  judge  and  witnesses.*^^ 
Proof  of  the  signature  of  the  maker  of  deed  entitles  it 
to  record.  ^^ 

It  seems  from  section  38  of  this  act  that  it  is  not 
necessary  for  the  certificate  of  proof  to  show  that  the 
subscribing  witnesses  reside  out  of  the  county,  or  were 
dead,  where  proof  is  made  by  proving  their  handwrit- 
ings. The  latter  part  contains  the  clause,  "and  in  all 
cases  the  certificate  of  any  county  judge  that  the  hand- 

161   1  L.  T.  1215;  P.  D.  4982. 

182  Paschal  v.  Perez,  7  Tex.  357,  358. 

1G3  Gainer  v.  Cotton,  49  Tex.  115;  Beaty  v.  Whitaker,  23  Tex. 
526;  Beaumont  Pasture  Co.  v.  Preston,  65  Tex.  454;  McCarty  v, 
Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100. 

1C4   McKissick   v.   Colquhoun,   18   Tex.   148;   Beaumont   Pasture   Co. 
V.   Preston,   65   Tex.   456.     And   for   proof   of   handwriting   by  parol, 
Bee  Blythe  v.  Houston,  46  Tex.  67. 
1.'} 


§§  457-459     PKOOF  OF  INSTRUMENTS  BY  WITNESSES.  194 

writing  of  the  witness  was  duly  proved  shall  be  suffi- 
cient evidence  to  authorize  the  clerk  of  the  county  court 
to  enter  such  title,"  etc.,  upon  record.  And  see  Paschal 
V.  Perez,  7  Tex.  357,  where  Justice  Hemphill  says  that 
section  38,  at  least  in  its  last  provision,  is  satisfied  with 
proof  of  a  single  witness.  Also  McKissick  v.  Colqu- 
houn,  18  Tex.  152. 

§  457.  Admissible  in  Evidence,  but  not  of  Record. — In 
Harris  v.  Hoskins,  2  Tex.  Civ.  App.  486,  22  S.  W.  251, 
it  was  held  that  an  ancient  document  transferring  a 
headright  certificate  free  from  suspicion,  and  over  thirty 
3^ears  old,  found  in  the  county  clerk's  office,  should  be 
admitted  in  evidence,  when  accompanied  with  an  offer 
to  prove  the  genuineness  of  the  signature  of  one  of  the 
subscribing  witnesses,  though  the  said  office  is  not  the 
proper  depository  for  such  instruments.  This  was 
signed  by  the  witnesses  while  the  act  of  December  20, 
1836,  was  in  force,  and  proven  for  record  while  the 
present  law  was  in  force  by  proof  of  the  handwriting 
of  a  single  witness,  and  it  was  held  that  it  was  not 
properly  proven  for  record,  but  admissible  in  evidence. 

§  458.  Act  of  January  19,  1839^^-^ — Signature  of  Signer. — 
This  act  provides  that  it  shall  be  the  duty  of  the  clerks 
of  the  county  courts  to  record  deeds,  etc.,  provided  one 
of  the  witnesses  shall  sw^ear  to  the  signature  of  the 
signer,  or  he  himself  shall  acknowledge  the  same,  etc. 
While  it  does  not  provide  for  proof  by  proof  of  hand- 
writing (unless  the  witnesses  swear  to  the  signature  of 
the  grantor  from  their  knowledge  of  his  handwriting), 
it  does  not  declare  the  methods  provided  for  therein 
shall  be  the  only  methods  of  proving  an  instrument, 
and  probably  does  not  repeal  the  earlier  provision  for 
proof  by  proof  of  handwriting. ^*^^ 

§  459.  Act  of  January  18,  1840*<'''— Statute  of  Frauds.— 
This  act  provided  that  (to  be  valid  against  creditors, 

165  2  L.  T.  52. 

166  See  ante,  §  222;  post,  §§  662-666. 

167  2   L.   T.   203. 


195  PKOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§460,461 

etc.)  deeds  of  land  must  be  acknowledged  or  proved  in 
such  manner  as  conveyances  are  directed  by  law  to  be 
acknowledged  or  proven,  or  if  it  be  of  goods,  chattels 
or  slaves,  then  acknowledged  or  proved  by  two  or  more 
witnesses.  But  this  does  not  apply  to  sales,  etc.,  for 
a  good  consideration.  This  does  not  seem  to  repeal  the 
provision  authorizing  proof,  by  proof  of  handwriting, 
in  certain  contingencies. 

§  460.  Act  of  February  5,  1840i<58_proof  by  Two  Wit- 
nesses.— This  act  required  deeds  to  be  acknowledged  or 
proved  by  Uco  witnesses  before  the  county  court  in  the 
county  where  the  land  or  a  part  thereof  lieth.  It  makes 
no  provision  as  to  proof  by  handwriting.  It  provides: 
"Nor  shall  such  conveyance  be  good  against  a  pur- 
chaser," etc.,  "unless  it  be  in  writing,  acknowledged  or 
proved  by  tioo  ivitncsses  to  be  his,  her,  or  their  act."^^^ 
Does  this  repeal  the  former  act  authorizing  proof  of 
handwriting?  It  does  not  state  that  the  witnesses  must 
be  subscribing  witnesses.  Under  this  act  it  is  possible 
that  proof  of  the  handwriting  of  the  grantor  by  two 
witnesses  would  be  suflflcient,  but  not  proof  of  the  hand- 
writing of  the  subscribing  witnesses. 

§  461.  Act  of  February  5,  ISU^'^^—Bj  a  Subscribing  Wit- 
ness.— This  act  provided  that  every  deed,  etc.,  hereafter 
to  be  made  and  recorded  shall  be  duly  registered,  etc., 
upon  acknowledgment  or  proof  by  a  subscribing  wit- 
ness, etc.  It  does  not  provide  how  the  proof  by  the  sub- 
scribing witness  shall  be  made — whether  or  not  he 
might  prove  it  by  swearing  to  the  signature  or  hand- 
writing of  the  signer  or  the  signature  or  handwriting  of 
the  other  witness,  nor  does  it  provide  that  this  shall  be 
the  only  method  of  proof.  It  also  validates  previous 
registrations  where  the  instrument  was  acknowledged 

168  2  L.  T.  327. 

169  Post,   §§   611-613. 

170  2   L.   T.   633. 


§§462-464     PEOOF  OF  INSTRUMENTS  BY  WITNESSES.  198 

or  proven  before  certain  officers  by  a  subscribing  wit- 
ness. It  does  not,  in  terms  at  least,  repeal  former 
modes  of  proof.*''* 

§  462.  Act  of  May  12,  1846i''2— Witness'  Absence.— This 
act  provided  that  when  the  subscribing  witnesses  may 
be  dead  or  their  place  of  residence  unknown,  or  where 
they  reside  out  of  the  state,  an  affidavit  thereof  may  be 
made  and  attached  to  the  instrument;  after  which  it 
may  be  proved  for  the  purpose  of  being  recorded,  by 
the  evidence  of  the  handwriting  of  the  grantor  or  per- 
son who  executed  same,  and  at  least  one  of  the  sub- 
scribing witnesses,  which  evidence  shall  consist  of  the 
depositions  of  two  or  more  disinterested  persons,  in 
writing  attached  to  such  instrument.  And  the  officer 
taking  such  proof  shall  make  a  certificate  thereof,  sign 
and  seal  the  same  with  his  official  seal.  If  the  person 
appearing  is  unknown  to  the  officer,  his  identity  shall 
be  proven.  And  it  provides  that  all  laws  and  parts  of 
laws  conflicting  with  the  provisions  of  this  act  be,  and 
the  same  are  hereby,  repealed. 

§  463.  Sufficient  Proof— Grantee  Prove  Absence  of  Wit- 
nesses.—A  deed  executed  in  1844  and  proved  in  1856,  by 
proof  of  handwriting  of  the  grantor  and  one  subscrib- 
ing witness,  and  the  absence  of  the  subscribing  wit- 
nesses, was  properly  proven,*''^  and  the  grantee  is  com- 
petent to  prove  the  absence  of  subscribing  witnesses. 
Under  the  above  act,  it  seems  that  it  was  not  necessary 
for  the  certificate  to  show  that  the  witnesses  were  dis- 
interested witnesses.*'''* 

§  464.  Act  of  February  9,  1860— Validates.— This  act  val- 
idates proof  before  certain  officers,  when  made  by  one 
or  more  of  the  subscribing  witnesses,  but  does  not  state 

171  Post,    §§    621-631. 

172  2  L.  T.  1544;   H.  D.  2792. 

173  Waters  v.  Spofford,  58   Tex.   121. 

174  See  ante,  §§  453,  454;  post,  §  466. 


197  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§465,466 

how  the  proof  had  to  be  made,  or  whether  or  not  it 
might  be  made  by  the  proof  of  the  handwriting  of  the 
signer,  or  of  one  or  more  of  the  other  witnesses.  This 
act  is  still  in  force. ^'^^ 

§  465.  Act  of  March  6,  1 863 1''*'— Witness  Absent.— This 
act,  amending  act  of  May  12,  1846,  provided  that  when 
the  subscribing  witnesses  to  any  instrument  of  writing 
may  be  dead,  or  their  place  of  residence  unknown,  or 
when  they  reside  out  of  the  state,  an  affidavit  thereof 
may  be  made  and  attached  to  such  instrument,  after 
which  it  may  be  proved  for  record  by  the  evidence  of 
the  handwriting  of  the  grantor  and  at  least  one  of  the 
subscribing  witnesses;  or  when  the  grantor  signed  by 
making  his  mark,  by  proof  of  the  handwriting  of  both 
of  the  subscribing  witnesses;  which  evidence  shall  con- 
sist of  the  deposition  or  affidavit  of  two  or  more  disin- 
terested persons,  in  writing  attached  to  such  instru- 
ment; and  the  officer  taking  such  proof  shall  make  a 
certificate  thereof,  sign  and  seal  the  same  with  his  offi- 
cial seal.  This  remained  in  force  until  the  adoption 
of  the  Revised  Statutes  of  1879,  which  is  still  in  force. 

§  466.  Sufficient  Proof  Under  this  Act. — Under  this  aet, 
where  an  affidavit  of  one  witness,  attached  to  the  deed, 
states  that  the  subscribing  witnesses  are  dead,  and  iden- 
tifies one  of  their  signatures,  and  affidavits  by  two  other 
witnesses,  stating  that  the  other  witness  and  grantor 
were  both  deceased,  and  that  their  signatures  were  genu- 
ine, and  that  affiants  were  not  interested  in  the  matter, 
the  deed  was  properly  proven  for  record.^'^''  It  seems 
that  the  certificate  would  not  be  void  for  failing  to  show 
that  the  witnesses  were  disinterested.*'^® 

175  See   Code   Crim.   Proc,   Act   Aug.   28,   1856;    P.   D.    3132;    Eev. 
Stats.;  Code  Crim.  Proc,  art.  794;  post,  §§  684,  685. 

176  5  L.  T.  614;  P.  D.  5009. 

177  Vasquez  v.  Texas  Loan  Agency  (Tex.  Civ.  App.),  45  S.  W.  942. 

178  Ante,    §§   453,   454. 


§§  467,  468    PROOF  OF  INSTRUMENTS  BY  WITNESSES.  198 

§  467.  Revised  Statutes  of  1879  and  1895  (Taking  Effect 
September  1,  1879) — Handwriting  of  Grantor  and  One  Sub- 
scribing Witness  Proved. — Article  4625  of  the  Revised 
Statutes  of  1895,  and  article  4317  of  the  Revised  Stat- 
utes of  1879 :  "The  execution  of  an  instrument  may  be 
established  for  record  by  proof  of  the  handwriting  of 
the  grantor,  and  of  at  least  one  of  the  subscribing  wit- 
nesses in  the  following  cases: 

"1.  When  the  grantor  and  all  the  subscribing  wit- 
nesses are  dead. 

"2.  When  the  grantor  and  all  the  subscribing  wit> 
nesses  are  nonresidents  of  this  state. 

"3.  When  the  place  of  their  residence  is  unknown 
to  the  party  desiring  the  proof,  and  cannot  be  ascer- 
tained. 

"4.  When  the  subscribing  witnesses  have  been  con- 
victed of  felony,  or  have  become  of  unsound  mind,  or 
have  otherwise  become  incompetent  to  testify. 

"5.  When  all  the  subscribing  witnesses  to  an  in- 
strument are  dead  or  are  nonresidents  of  this  state,  or 
when  their  residence  is  unknown,  or  when  they  are  in- 
competent to  testify,  and  the  grantor  in  such  instru- 
ment refuses  to  acknowledge  the  execution  of  the  same 
for  record." 

§  468.  Facts  Which  Must  be  Proven.— Article  4626 :  ''The 
evidence  taken  under  the  preceding  article  must  satis- 
factorily prove  to  the  officer  the  following  facts: 

"1.  The  existence  of  one  or  more  of  the  conditions 
mentioned  therein;  and, 

"2.  That  the  witness  testifying  knew  the  person 
whose  name  purports  to  be  subscribed  to  the  instru- 
ment as  a  party,  and  is  well  acquainted  with  his  sig- 
nature, and  that  it  is  genuine;  and, 

"3.  That  the  witness  testifying  personally  knew  the 
person  who  subscribed  the  instrument  as  a  witness,  and 
is  well  acquainted  with  his  signature,  and  that  it  is 
genuine;  and, 

"4.     The  place  of  residence  of  the  witness  testifying." 


199  PROOF  OF  INSTRUMENTS  BY  WITNESSES.     §§  469-471 

§  469.  Signature  by  Mark — Proof,  How  Made. — Article 
4627  (4319) :  "When  the  grantor  or  person  who  executed 
the  instrument  signed  the  same  by  making  his  mark, 
and  when,  also,  one  of  the  conditions  mentioned  in  ar- 
ticle 4625  exists,  the  execution  of  any  such  instrument 
may  be  established  by  proof  of  the  handwriting  of  two 
subscribing  witnesses,  and  of  the  place  of  residence  of 
such  witnesses  testifying." 

§  470.  Proof  Made  by  Whom.— Article  4628  (4320): 
"The  proof  mentioned  in  the  three  preceding  articles 
must  be  made  by  the  deposition  or  affidavit  of  two  or 
more  disinterested  persons  in  writing;  and  the  officer 
taking  such  proof  shall  make  a  certificate,  sign  and  seal 
the  same  with  his  official  seal,  which  proofs  and  certifi- 
cate shall  be  attached  to  such  instrument."^''^ 

K.     OTHER  MEANS  OF  PROVING  CONVEYANCES  FOR  RECORD. 

§  471.  Obtaining  and  Recording  Judgment. — While  the  first 
two  methods  are  the  direct  methods  of  proving  instru- 
ments for  registration,  and  require  certain  statutory  evi- 
dence, our  statutes  also  allow  us  an  indirect  method  of 
proving  instruments  for  record,  and  making  such  proof 
by  the  common-law  rules  of  evidence,  to  wit :  By  suit  in 
court  establishing  the  validity  of  the  instrument,  and 
then  recording  the  judgment  in  the  records  of  deeds. 
Such  proof  and  registration  has  been  authorized  since 
the  act  of  February  5,  1840.**^  It  seems  that  before 
this  time  record  of  a  judgment  in  the  record  of  deeds 
was  not  authorized  or  required.  From  this  time  to  the 
adoption  of  our  Revised  Statutes  of  1879,  it  seems  that 
all  instruments,  except  those  of  married  women,  could 
be  so  established  for  record  by  suit,  whether  acknowl- 
edged or  witnessed  or  not,  but  that  a  married  woman's 
deed  could  not  be  so  cured  if  not  properly  acknowl- 
edged, and  possibly  not,  even  though  properly  acknowl- 

179  As  to  necessity  of  certificate  stating  that  witness  was  disin- 
terested, see  ante,  §§  453,  454,  466. 

180  H.  D.  2771. 


§§  472,  473     PEOOF  OF  INSTRUMENTS  BY  WITNESSES. 


200 


edged,  if  defectively  certified,  unless  some  equity  or  the 
doctrine  of  estoppel  would  aid  such  action.  It  has  been 
sometimes  held  by  our  courts  that  such  deeds  without 
proper  certificates  are  void.^*^^  Yet  we  found  no  case 
where  such  correction  of  a  married  woman's  deed,  de- 
fective owing  to  the  defective  certificate  of  a  valid  ac- 
knowledgment, was  attempted  in  a  direct  proceeding 
during  the  above  pej*iod.**^ 

§  472.  Curing  Certificates. — After  the  adoption  of  the 
Revised  Statutes  of  1879  (articles  4351  to  4355),  such 
action  was  authorized  to  cure,  in  addition  to  the  in- 
struments which  previously  might  have  been  cured,  de- 
fective certificates  of  valid  acknowledgments  of  mar- 
ried women.  **^ 

L.  PROOF  OF  DEEDS  OFFERED  IN  EVIDENCE. 

§  473.  Common-law  Rules  of  Evidence. — Since  the  abro- 
gation of  the  civil  law  and  the  adoption  of  the  common 
law  in  Texas  (January  20,  1840),*^*  the  common-law 
rules  of  evidence  have  generally  controlled  the  proof  of 
written  instruments  offered  as  evidence  in  the  courts, 
unless  properly  recorded  and  filed  for  three  days  with 
the  papers  of  the  cause,  etc.,  as  provided  by  statute. ^^^ 
Where  the  deed  is  lost,  it  is  not  necessary  to  prove  its 
contents  by  subscribing  witnesses,  as  would  be  required 

181  See  "Equity  and  Estoppel"  and  §§  998-1005;  Looney  v.  Adam- 
son,  48  Tex.  622;  Williams  v.  Ellingsworth,  75  Tex.  480,  12  S.  W. 
746;  Starnes  v.  Beitel,  20  Tex.  Civ.  App.  425,  50  S.  W.  203;  Johnson 
V.  Taylor,  60  Tex.  361. 

182  For  proving  lost  or  destroyed  instruments,  see  ante,  §§  67a, 
190. 

183  See  "Curing  Defective  Acknowledgments  and  Certificates," 
chapter  28. 

184  2  L.  T.  177. 

185  Sloan  V.  Thompson,  4  Tex.  Civ.  App.  419,  23  S.  W.  616;  Holmes 
v.  Coryell,  58  Tex.  688;  Gainer  v.  Cotton,  49  Tex.  116;  Loftin  v. 
Nally,  24  Tex.  574;  Butler  v.  Dunagan,  19  Tex.  565;  Holliday  v. 
Cromwell,  26  Tex.  193;  Wiggins  v.  Fleishel,  50  Tex.  62;  McFadden 
V.  Preston,  54  Tex.  407;  Gaines  v.  Ann,  26  Tex.  341.  See  ante,  §§ 
445-451,  457. 


201  PROOF  OF  INSTRUMENTS  BY  WITNESSES.     §§474-476 


if  the  deed  were  in  existence,  but  secondary  evidence 
was  admissible  for  that  purpose.*^^ 

§  474.  By  Subscribing  Witnesses. — Under  the  common 
law  such  instruments  must  be  proven  by  the  best  or 
primary  evidence,  if  obtainable,  to  wit :  By  one  or  more 
of  the  subscribing  witnesses,  if  there  be  any,  and  he  is 
within  the  jurisdiction  of  the  court;  if  not  obtainable, 
or  he  has  become  the  advei-se  party,  other  or  secondary 
evidence  is  admissible.*®''  The  common-law  rule  per- 
mitted the  witness  to  prove  the  execution  by  swearing 
to  the  signature  of  the  signer  or  to  his  handwriting. *®® 

§  475.  Subscribing  Witnesses  not  Obtainable  or  Adverse 
Party.— If  the  witnesses  are  not  obtainable,  nor  compe- 
tent, or  have  become  the  adverse  party,  proof  of  the 
instrument  should  be  made  by  proof  of  the  handwriting 
of  the  witnesses,  or  at  least  one  of  them.*®^  But  some 
cases  hold  that  proof  of  the  signature  of  the  grantor  is 
preferable.  *^^ 

§  476.  Where  Witness'  Handwriting  cannot  be  Proved. — 
If  proof  of  the  handwriting  of  the  subscribing  witness 
cannot  be  made,  proof  of  the  handwriting  of  the  grantor 
is  acceptable;*^*  also,  is  other  evidence,  such  as  proof 
of  execution  by  comparison  of  signatures  and  hand- 
writing,*^^ and  admissions  and  circumstantial  evidence 
even,  where  the  deed  is  lost  or  destroyed.***^ 

186  Masterson   v.   Harris   (Tex.  Civ.  App.),   83  S.  W.  429. 

187  Abbott's  Trial  Evidence,  1st  ed.,  505,  506;  Greenleaf  on  Evi- 
dence, 13th  ed.,  572;  Cairrell  v.  Higgs,  1  U.  C.  60;  Craddock  v.  Mir- 
rell,  2  Tex.  496;  Mapes  v.  Leal,  27  Tex.  349;  Texas  Land  Co.  v. 
Williams,  51  Tex.  60. 

188  Sloan  V.  Thompson,  4  Tex.  Civ.  App.  419,  23  S.  W.  616;  Ab- 
bott's Trial  Evidence,  393;  Greenleaf  on  Evidence,  572. 

189  Gainer  v.  Cotton,  49  Tex.  117;  Greenleaf  on  p]vidence,  13th 
ed.,  575;    Abbott's   Trial   Evidence,   391. 

190  Greenleaf  on  Evidence,  575;  Frazin  v.  Moore,  11  Tex.  755. 

191  Cairrell  v.  Higgs,  1  U.  C.  60;  Clark  v.  Sanderson,  3  Binn. 
(Pa.)   192,  5  Am.  Dec.  368. 

192  Greenleaf   on    Evidence,   576-582. 

193  Baylor  v.  Tilleback,  20  Tex.  Civ.  App.  490,  49  S.  W.  721;  Clapp 


§§  477-480     PROOF  OF  INSTRUMENTS  BY  WITNESSES.  202 

§  477.  May  be  Proved  by  Grantee  When. — A  grantee 
may  prove  an  examined  copy  of  a  deed,  the  original 
being  lost  and  the  subscribing  v^dtnesses  being  dead 
or  out  of  the  state.**^*  A  trustee  making  deed  to  him- 
self, there  being  no  subscribing  witnesses  nor  acknowl- 
edgment, may  testify  to  its  execution.  ^**^ 

§  478.  Proved  by  any  Competent  Witnesses  When. — If  the 
subscribing  witness'  testimony  leaves  the  execution  in 
doubt,  it  may  be  proven  by  those  present  at  the  execu- 
tion, who  saw  the  grantor  execute  it  or  heard  him  ad- 
mit it,  or  it  may  be  proven  by  any  competent  witness 
who  knows  the  handwriting  of  the  grantor.^'*** 

§  479.  No  Subscribing  Witnesses — Proof,  How  Made. — 
Where  there  are  no  subscribing  witnesses,  proof  of  exe- 
cution must  be  made  by  proof  of  the  signature  of  the 
signer,  if  it  can  be  made,  and  such  proof  may  be  by 
the  signer,  or  other  person  who  saw  him  sign  it,  heard 
him  acknowledge  it,  or  knows  his  signature,*^''  or  by 
comparison  of  handwritings.*^* 

§  480.  By  Other  Evidence. — If  the  proof  of  the  signa- 
ture cannot  be  made,  other  or  secondary  evidence  is  ad- 
missible to  prove  the  execution  or  the  former  existence 
of  the  deed,  to  wit,  admissions,  circumstantial  evidence, 
etc.*^^ 

V.  Engledow,  82  Tex.  296,  18  S.  W.   146;  Heintz  v.  Thayer,  92  Tex. 
658,  50  S.  W.  930;  Cox  v.  Rust  (Tex.  Civ.  App.),  29  S.  W.  807. 

194  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

195  Bohn  V.  Davis,  75  Tex.  26,  12  S.  W.  837. 

196  Abbott's  Trial  Evidence,  391;  Miller's  Estate,  3  Rawle,  312, 
24  Am.  Dec.  345;  Steplienson  v.  Stephenson,  6  Tex.  Civ.  App.  529,  25 
S.  W.  649.     See  ante,   §§  445-451,  457. 

197  Abbott's  Trial  Evidence,  391,  393;  Greenleaf  on  Evidence,  575, 
569,  note;  Sloan  v.  Thompson,  4  Tex.  Civ.  App.  419,  23  S.  W.  616. 

198  Abbott's  Trial  Evidence,  369;  Greenleaf  on  Evidence,  576-582; 
Jester  v.  Steiner,  86  Tex.  420,  25  S.  W.  411;  Eborn  v.  Zimpelman,  47 
Tex.  518,  26  Am.  Rep.  315;  Hanley  v.  Gandy,  28  Tex.  213,  91  Am. 
Dec.  315.     See  "Handwriting,"  §§  440-450. 

199  Texas  Land  Co.  v.  Williams,  51  Tex.  59;  Baylor  v.  Tilleback, 
20  Tex.  Civ.  App.  490,  49  S.  W.  721;  Heintz  v.  Thayer,  92  Tex.  658, 


203  PEOOF  OF  INSTRUMENTS  BY  WITNESSES.     §§481,482 

§  481.  Primary  and  Secondary  Evidence. — In  so  far  as 
the  proof  of  written  instruments  is  concerned,  it  is  diffi- 
cult to  tell  from  the  authorities  where  and  when  the  line 
between  primary  and  secondary  evidence  should  be 
drawn ;  for  instance,  the  best  or  primary  evidence  of  the 
proof  of  execution  of  a  written  instrument,  if  there  be 
subscribing  witnesses,  is  proof  of  its  execution  by  the 
testimony  of  the  witnesses.  It  is  held  that  the  grantee 
in  a  deed  could  not  be  called  to  prove  its  execution 
without  accounting  for  the  absence  of  the  subscribing 
witnesses,  or  otherwise  laying  the  foundation  for  the 
introduction  of  secondary  evidence.-**®  The  next  best 
or  secondary  is  the  proof  of  the  signatures  of  the  wit- 
nesses.^®^ The  next  best  is  the  proof  of  the  execution 
(by  the  grantor)  by  the  testimony  of  others  than  sub- 
scribing witnesses,  who  testify  to  their  having  seen  the 
execution,  its  acknowledgment  in  their  presence,  or 
their  knowledge  of  the  grantor's  handwriting;"®^  and 
the  next  is  where  the  instrument  is  lost  or  destroyed, 
proof  of  its  existence  by  admissions,  copies,  circumstan- 
tial evidence,  etc.^®^ 

§  482.  General  Rule. — The  general  rule  adopted  seems 
to  be,  in  this  state,  that  there  are  no  degrees  of  secondary 
evidence.^®*  This  follows  the  English  rule,  while  the 
weight  of  the  American  authorities  have  adopted  a  dif- 
ferent rule  and  require  a  party  to  produce  the  best 
kind  of  secondary  evidence. ^®^ 

50  S.  W.  930;  Clapp  v.  Engledow,  82  Tex.  296,  18  S.  W.  146;  Cox  v. 
Eust  (Tex.  Civ.  App.),  29  S.  W.  807. 

200  Texas  Land  Co.  v.  Williams,  51  Tex.  59;  Wiggins  v.  Fleishel, 
50  Tex.  57;  Greenleaf  on  Evidence,  13th  ed.,  84. 

201  Ante,  §  475. 

202  Ante,  §  448. 

203  Ante,  §  480. 

204  Texas  Land  Co.  v.  Williams,  51  Tex.  59;  White  v.  Burney,  27 
Tex.  51;  Houston  v.  Robertson,  2  Tex.  18;  Greenleaf  on  Evidence, 
582,  584,  note. 

205  Harvey  v.  Thorpe,  65  Am.  Dec.  346,  and  cases  cited. 


§  483  PKOOF  OF  INSTRUMENTS  BY  WITNESSES.  204 

§  483.  Line  Drawn  Between  Primary  and  Secondary  Evi- 
dence.— It  becomes  important  to  know  what  is  the  pri- 
nuiry  evidence  in  a  given  case,  and  where  the  line  is 
drawn  between  that  and  secondary.  For  instance,  sup- 
pose it  is  shown  that  the  subscribing  witnesses  are 
dead,  and  consequently  the  best  evidence^^*^  cannot  be 
produced,  could  the  proof  of  the  signatures  of  the  sub- 
scribing witnesses,  being  the  next  best  evidence,  be  dis- 
pensed with,  and  proof  of  the  execution  be  made  by 
proof  of  the  signature  of  the  grantor,  or  by  a  lower  de- 
gree of  evidence?  If  there  were  no  subscribing  wit- 
nesses, proof  of  the  signature  of  the  grantor  or  signer 
would  be  the  best  evidence,  and  a  lower  degree  could 
not  be  given  without  proper  excuses  for  the  absence  of 
the  higher.  In  this  case  the  line  would  be  drawn  be- 
tween the  proof  of  the  signature  of  the  signer  and  the 
lower  grade  of  evidence. ^^'''  Would  the  fact  that  the 
deed,  etc.,  was  witnessed  and  the  witnesses  dead  dis- 
pense w^ith  the  necessity  of  proving  the  signature  of  the 
grantor  and  permit,  without  other  showing,  the  intro- 
duction of  a  lower  degree  of  evidence?  It  does  not 
seem  to  have  been  decided  in  this  state. ^^^ 

206  Ante,  §§  456,  481. 

207  Ante,  §§  454,  455. 

208  See  Simpson  v.  Edens  (Tex.  Civ.  App.),  38  S.  W.  476. 


205  SEALS. 


CHAPTER  XIII. 

SEALS. 

A.     GENERAL   TEXT. 

§  484.     Seals  essential— Kind  of  seal  to  be  used. 

§  485.     Not  constructive  notice  without  seal. 

§  486.     Not  required  when. 

§  487.     Attachment  of  seal  is  question  of  fact. 

§  488.     Reference  to  seal  unnecessary  when  attached. 

§  489.     Presumption  and  statement  as  to  seal. 

§  490.  Reference  to  seal  on  record  affords  presumption  of  proper 
seal. 

§  491.  Statement  in  record  "no  seal  on"  ineffectual  if  original 
shows  seal. 

§  492.  No  presumption  that  seal  was  attached  where  there  is  noth- 
ing to  show  it. 

§  493.     Clerical  omission  of  word  "seal"  not  fatal. 

§  494.     Parol  evidence  to  aid  seal. 

§  495.     Omission  of  seal  by  mistake  not  aided  by  parol. 

§  496.     Parol  evidence  to  aid  omission  admissible  when. 

§  497.     Seal  may  be  attached  when. 

§  498.     Justices  of  the  peace  must  use  notarial  seals. 

§  499.     No  form  of  seal  for  commissioners  of  deeds  prescribed  when. 

§  500.     Forms  of  seals  prescribed. 

§  501.  Private  seals  or  scrolls— Railroad  company's  seals — Private 
seals  in  lieu  of  official. 

§  502.  Conveyance   without   private   seals   not   void. 

B.     STATUTORY   ENACTMENTS   RELATING   TO    SEALS. 

§  503.  Act   of   December   20,   1836— Seal    of   county   court. 

§  504.  Act   of  November   16,   1837 — Notaries   shall   use   seal. 

§  505.  Act  of  February  5,  1840— Use  of  seal  required. 

§  506.  Act  of  February  3,  1841— Use  of  seal  required. 

§  507.  Act  of  February  5,  1841 — Use  of  seal  required. 

§  508.  Act   of  January   10,   1845— Notarial   seal. 

§  509.  Act  of  April  29,  1846— Use  of  seal  required. 

§  510.  Act  of  April  30,   1846 — Judges  and  notaries  to  attach  seals. 

§  511.  Act   of   May   8,   1846— Commissioners   of   deeds   to   use   seals. 

§  512.  Act  of  May  11,  1846— Seal  of  district  court. 

§  513.  Act  of  May  13,  1846— Notarial  seals. 

§  514.  Act  of  May  12,  1846— Seals  of  county  court. 


§  484  SEALS.  206 

§  515.     Act  of  May  13,  1846— Seals  of  county  court. 

§  516.     Act  of  March  16,  1848 — Seals  of  couuty  court. 

§  517.     Act  of  November  24,  1851— Validates  seal  used  by  Galveston 

county  court. 
§  518.     Acts  of  April   6,   1861,   and  January   14,   1862— Use   of   seals 

required. 
§  519.     Act  of  December  31,  1861 — Seals  of  commissioners  of  deeds. 
§  520.     All  subsequent  acts  required  the  use  of  seals. 
§  521.     Act  of  June  16,  1876— Seal  of  county  court. 
§  522.     Act  of  June  24,  1876— Seals  of  notaries. 
§  523.     Act  of  August  18,  1876 — Seals  of  county  court. 
§  524.     Act  of  April  18,  1879— Validated  certain  notarial  seals. 
§  525.     Act  of  March  18,  1881 — Validated  certain  notarial  seals. 
§  526.     Act   of  April  1,  1881— Notarial  seals. 
§  527.     Act  of  April  5,  1889— Validates  certain  notarial  seals. 

(For  necessity  of  seals  prior  to  December  20,  1836,  see  ante, 

§  3   (d).)    ' 

A.     GENERAL   TEXT. 

§  484.  Seals  Essential — ^Kind  of  Seal  to  be  Used. — Where 
a  seal  is  required  by  statute  it  is  essential  to  the  valid- 
ity of  the  certificate.  Under  the  act  of  1846,  which  is 
still  in  force,  the  certificate  must  be  authenticated  by 
the  oflfi-cial  seal/  No  notarial  act  is  valid  without  the 
seal,  and  the  use  of  the  seal  of  the  county  court  by  mis- 
take is  fatal  to  the  certificate,  and  it  seems  that  the 
acts  requiring  particular  seals  are  mandatory.^  And 
the  seal  being  evidence  of  the  fact  of  the  examination 
of  a  married  woman,  it  was  error  to  admit  parol  evi- 
dence to  show  such  examination.^  But  it  is  held  else- 
where that  the  use  of  an  irregular  notarial  seal  will  not 
vitiate  the  certificate  of  a  notary.'*  Omission  of  seal  of 
notary  was  not  fatal  under  the  common  law.^ 

1  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  Settegast  v.  Charpiot 
(Tex.  Civ.  App.),  28  S.  W.  580;  Witt  v.  Harlan,  66  Tex.  660,  2  S.  W. 
41;  Ballard  v.  Perry,  28  Tex.  366. 

2  McKeller  v.  Peck,  39  Tex.  387;  Masterson  v.  Todd,  6  Tex.  Civ. 
App.  131,  24  S.  W.  682;  Kincaid  v.  Jones,  2  U.  C.  534. 

3  McKeller  v.  Peck,  2  U.  C.  194. 

4  Muncie  Nat.  Bank  v.  Brown,  112  Ind.  477,  14  N.  E.  358. 

5  RindskofE  v.  Malone,  74  Am.  Dee.  368.  See  note  for  fuU  dis- 
cussion. 


207  SEALS.  §§485-489 

§  485.  Not  Constructive  Notice  Without  Seal. — Where  the 
execution  of  the  deed  is  proven  as  at  common  law,  its 
registration  will  not  be  deemed  constructive  notice  on 
appeal  unless  it  appears  from  the  record  that  the  seal 
of  the  officer  before  whom  it  was  acknowledged  was  af- 
fixed to  his  certificate.^ 

§  486.  Not  Required  When.— The  law  of  December  20, 
1836,  did  not  require,  as  later  laws  on  this  subject  seem 
to  do,  that  the  certificate  of  the  recorder  to  the  registra- 
tion of  the  deed  should  be  authenticated  by  his  official 
seal.'''  Seals  to  the  certificate  of  the  county  clerk  seem 
not  to  have  been  required  under  the  laws  of  1836,  and 
March  16,  1810,  but  were  required  by  the  act  of  May 
12,  1846.* 

§  487.  Attachment  of  Seal  is  a  Question  of  Fact. — The 
question  as  to  whether  or  not  a  seal  was  used  on  an  in- 
strument is  a  question  of  fact  to  be  established  by  proof. 
If  a  seal  was  in  fact  used,  but  has  since  become  obliter- 
ated, the  instrument  is  not  invalid  on  that  accoiunt. 
And  it  is  not  necessary  that  the  seal  make  an  impres- 
sion on  the  paper;  if  it  be  made  on  wax  spread  on  the 
paper,  that  is  sufficient.^ 

^  488.  Reference  to  Seal  Unnecessary  When  Attached. — 
If  it  is  attached,  it  is  not  necessary  for  the  certificate 
to  certify  that  it  is  attached.^^ 

§  489.  Presumption  and  Statement  as  to  Seal. — If  the 
certificate  of  the  notary  declares  that  he  has  affixed  his 
official  seal,  though  the  record  made  by  the  county  clerk 
fails  to  indicate  seal  by  scroll  or  the  initials  "(L.  S.),"  it 

6  Daugherty  v.  Yates,  13  Tex.  Civ.  App.  647,  35  S.  W.  937. 

7  Wilson  V.  Simpson,  80  Tex.  279,  16  S.  W.  40. 

8  Waters  v,  Spofford,  58  Tex.  121;  Eiviere  v.  Wilkens   (Tex.  Civ. 
App.),  72   S.  W.  610. 

9  Stooksberry  v.  Swann  (Tex.  Civ.  App.),  21  S.  W.  695. 

10  Webb  V.  Huff,  61  Tex.  678. 


§§490,491  SEALS.  208 

may  be  presumed  that  the  seal  was  properly  attached/^ 
and  the  rule  applies  where  the  record  is  offered  instead 
of  a  certified  copy/^  And  it  is  not  essential,  to  the  ad- 
mission in  evidence  of  the  record  copy  of  a  deed,  that 
anything  should  appear  in  the  copy  to  represent  the  seal 
required  to  accompany  the  certificate  of  acknowledg- 
ment.*^ 

;<  490.  Reference  to  Seal  on  Record  Affords  Presumption 
of  Proper  Seal. — \\  here  the  certificate  on  record  or  copy 
recites  that  the  seal  is  attached,  as  "witness  my  hand 
and  official  seal,"  or  where  the  word  "seal"  or  the  ini- 
tials "L.  S."  are  written  in  the  record  or  copy  to  indi- 
cate the  seal,  the  presumption  is  that  a  proper  seal  was 
attached.**  In  the  case  of  Stephens  v.  Motl,  it  is  held 
that  after  a  gTeat  lapse  of  time  it  would  be  presumed 
that  the  seal  showed  that  the  certificate  was  made  by 
an  officer  of  the  proper  county,  and  could  be  properly 
looked  to  by  the  officer  who  made  the  record,  to  aid  the 
certificate  of  acknowledgment.*^ 

§  491.  Statement  in  Record  "No  Seal  on"  Ineffectual  if 
Original  Shows  Seal. — After  the  record  of  a  mortgage,  on 
the  record-book  at  usual  place  for  the  seal  was  written 
by  the  officer  making  the  record,  "no  seal  on,"  the  orig- 
inal of  the  mortgage  was  produced  wdth  the  impression 
thereon  of  the  official  seal.  The  officer  testified  that 
he  had  attached  the  seal  at  the  time  he  made  the  certifi- 

11  Ballard  v.  Perry,  28  Tex.  366;  Coffey  v.  Hendricks,  66  Tex. 
677,  2  S.  W.  47. 

12  Ballard  v.  Perry,  28  Tex.  366;  Coffey  v.  Hendricks,  66  Tex. 
677,  2  S.  W.  47. 

13  Witt  V.  Harlan,  66  Tex.  661,  2  S.  W.  41;  Minor  v.  Powers  (Tex. 
Civ.  App.),  38  S.  W.  400;  Moses  v.  Debrell,  2  Tex.  Civ.  App.  457,  21 
S.   W.   414. 

14  Alexander  v.  Houghton,  86  Tex.  705,  26  S.  W.  937;  Chamberlain 
V.  Pybas,  81  Tex.  514,  17  S.  W.  50;  Stephens  v.  Motl,  81  Tex.  120, 
16  S.  W.  731;  Ballard  v.  Perry,  28  Tex.  366;  Coffey  v.  Hendricks, 
66  Tex.  676,  2  S.  W.  47. 

15  Candle  v.  Williams  (Tex.  Civ.  App.),  51  S.  W.  562.  Also  see 
41  Am.  Dec.  173,  note,  and  30  Am.  St.  Rep.  122,  for  briefs. 


209  SEALS.  §§  492-495 

cate,  and  it  was  held  that  the  mortgage  was  duly  re- 
corded.-'^^ 

§  492.  No  Presumption  that  Seal  was  Attached  Where 
There  is  Nothing  to  Show  It. — Where  the  acknowledgment 
did  not  purport  to  be  under  the  notary's  official  or 
notarial  seal,  and  it  was  impossible  to  tell  from  the 
paper  whether  such  seal  had  been  in  fact  used,  it  was 
error  to  instruct  the  jury  that  acts  done  by  public  offi- 
cers are  generally  presumed  to  be  regular,  as  would  re- 
quire the  jury  to  infer  that  a  seal  had  been  attached.^'' 
It  will  be  noted  that  the  certificate  did  not  recite  that 
the  seal  had  been  attached. 

§  493.  Clerical  Omission  of  Word  "Seal"  not  Fatal — 
The  omission  of  the  word  "seal"  in  the  clause,  "and 

of  office,"  is  not  fatal  to  the  certificate,  as  it  is 

apparent  what  word  was  omitted,  and  it  can  easily  be 
supplied  by  the  reader.** 

§  494.  Parol  Evidence  to  Aid  Seal. — It  is  competent  to 
show  by  parol  evidence  that  the  official  seal  was  at- 
tached.*® 

§  495.  Omissions  of  Seal  by  Mistake  not  Aided  by  Parol. — 
As  the  omission  of  the  seal  makes  the  certificate  invalid 
for  the  purpose  of  registration,  parol  evidence  that  the 
seal  was  omitted  by  mistake  is  inadmissible  to  fix 
notice  or  make  the  certificate  operative  as  constructive 
notice,  but  such  evidence  would  be  admissible  for  the 
purpose  of  proving  the  execution  of  the  deed  by  a  per- 
son other  than  a  married  woman.^** 

16  Equitable  Mortgage  Co.  v.  Kempner,  84  Tex.  102,  19  S.  W.  358. 

17  Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  66,  21  S.  W.  694,  22 
S.  W.  966. 

18  Nichols  V.  Stewart,  15  Tex.  235;  Nichols  v.  Gordon,  25  Tex, 
Supp.  112;  Belcher  v.  Weaver,  46  Tex.  298,  26  Am.  Kep.  267. 

19  Equitable  Mortgage  Co.  v.  Kempner,  84  Tex.  102,  19  S.  W. 
358;  Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  66,  21  S.  W.  695,  22 
S.  W.  966. 

20  King  V.  Eussell,  40  Tex.  126. 

14 


§§  496-498  SEALS.  210 

§  496.  Parol  Evidence  to  Aid  Omission  Admissible  When. 
Where  the  seal  has  been  omitted  from  the  eertificate  of 
a  married  woman's  acknoAvledji;ment,  it  was  held  that 
as  the  certificate  concludes  the  wife's  interest,  and  can- 
not be  attacked  save  for  fraud,  on  the  same  principle 
it  should  not  be  aided  by  parol. ^^  In  the  above  cases 
it  will  be  noticed  that  the  causes  of  action  arose  and 
were  tried  before  the  Revised  Statutes  of  1879  were 
adopted,  providing  for  the  curing  of  defective  certifi- 
cates of  acknowledgments  by  action,  where  they  were 
properly  taken,  but  defectively  certified.  Under  this 
statute  it  would  be  proper  to  cure  the  absence  of  seal 
by  such  action. ^^ 

§  497.  Seal  may  be  Attached  When. — It  is  intimated  in 
McKeller  v.  Peck,  39  Tex.  382,  that  where  a  notary  omits 
the  seal  by  mistake,  he  may  cure  the  same  at  any  time 
while  in  ofiice  by  attaching  the  seal,  provided  the  mar- 
ried woman  has  not  in  the  meantime  withdrawn  her  ac- 
knowledgment. But  this  rule  has  not  been  uniformly 
adhered  to  in  later  cases.  It  was  decided  by  the  court 
of  civil  appeals  that  where  the  instrument  has  passed 
out  of  the  officer's  hands  he  cannot  amend  it  without  a 
re-examination  f^  but  the  supreme  court  dissented  from 
that  view,  following  McKeller  v.  Peck,  supra.^^ 

§  498.  Justices  of  the  Peace  Must  Use  Notarial  Seals. — 
Justices  of  the  peace,  as  ex-officio  notaries  public,  must 
use  the  seal  of  notaries.^^ 

21  McKeller  v.  Peek,  2  U.  C.  194. 

22  Johnson  v.  Taylor,  60  Tex.  361;  Leach  v.  Dodson,  64  Tex.  189; 
Davis  V.  Agnew,  67  Tex.  206,  2  S.  W.  43,  376;  Hayden  v.  Moffett,  74 
Tex.  650,  15  Am.  St.  Eep.  866,  12  S.  W.  820;  Williams  v.  Ellingsworth, 
75  Tex.  482,  12  S.  V7.  746. 

23  Stone  V.  Sledge  (Tex.  Civ.  App.),  24  S.  W.  697,  87  Tex.  49,  47 
Am.  St.  Eep.  65,  26  S.  W.  1069. 

24  See  post,   §   992. 

25  Daugherty  v.  Yates,  13  Tex.  Civ.  App.  647,  35  S.  W.  939. 


211 


SEALS.  §§499-501 


§  499.  No  Form  of  Seal  Prescribed  for  Commissioners  of 
Deeds  When.— Under  the  act  of  May  8,  1846,'^  providing 
for  the  appointment  of  commissioners  of  deeds  to  take 
acknowledgments  beyond  the  limits  of  this  state,  did 
not  require  any  particular  form  of  seal  to  be  used.^'' 

In  1868,  under  the  statute  requiring  no  particular 
form  of  seal  for  commissioners  of  deeds,  the  omission  of 
the  star  is  not  fatal  to  the  certificate  of  acknowledgment. 
The  law  in  force  did  not  require  commissioners  of  deeds 
for  other  states  to  provide  themselves  with  seals,  with  a 
star  of  five  points  in  the  center.  There  was  a  statute 
making  such  requirement  for  the  commissioners  of  the 
Choctaw,  Chickasaw,  Cherokee  and  Creek  nations  of 
Indians  at  that  time.  And  there  is  now  (since  the 
adoption  of  the  Revised  Statutes  of  1879,  article  517) 
such  a  statute  in  regard  to  commissioners  generally. 
(It  seems  that  the  act  of  December  31,  1861,^^  only  ap- 
plied to  the  seals  of  the  commissioners  for  the  Indian 
nations,  previous  to  its  incorporation  in  the  Revised 
Statutes  of  1879,  and  that  the  Revised  Statutes  of  1879 
for  the  first  time  made  that  section  apply  to  commission- 
ers generally.) 

§  500.  Forms  of  Seals  Prescribed. — The  acts  requiring  and 
specifying  the  forms  of  seals  will  be  noted  in  sections 
503-527,  post.  As  to  the  effect  of  failing  to  use  proper 
form,  see  ante,  §  484. 

§  501.  Private  Seals  or  Scrolls — ^Railroad  Companies'  Seals — 
Private  Seals  in  Lieu  of  Official.— Private  seals  were  required 
by  all  persons  from  March  16,  1840,  to  February  2, 
1858,^^  and  by  married  women  from  February  3,  1841, 
to  February  2,  1858.^*     They  might  be  used  in  lieu  of 

26  P.   D.,   art.   3762. 

27  Thorn  v.  Frazier,  60  Tex.  261. 

28  Davis  V.  Koosevelt,  53  Tex.  314. 

29  P.   D.   3771. 

30  Post,  §  505. 

31  Post,    §    506. 


•§§  502-505 


SEALS.  212 


official  in  some  cases. ^^     Railway    company's    private 
seal  sufficients^ 

§  502.  Conveyance  Without  Private  Seals  not  Void. — ^Dur- 
ing this  time,  while  conveyance  without  such  seal  did 
not  pass  title,  it  was  not  void,  but  good  as  a  contract 
or  passed  equitable  interest.^^ 

B.  STATUTOEY  ENACTMENTS  EELATING-  TO  SEALS. 

§  503,  Act  of  December  20,  1836— Seal  of  County  Court. 
This  act  (taking  effect  from  passage)^^  required  county 
clerks  to  procure  a  seal  for  the  use  of  their  respective 
courts,  with  the  seal  of  the  court  around  the  margin 
thereof,  and  a  star  of  five  points  in  the  center;  that  this 
seal  shall  be  the  notarial  seal,  and  shall  be  fixed  to  all 
instruments  and  attestations  of  the  respective  notaries. 
This  act  made  county  clerks  recorders,  authorized  them 
to  receive  proof  and  acknowledgments  of  instruments 
and  certify  to  them,  which  shall  form  part  of  the  record, 
but  does  not  require  them  to  use  a  seal.^^ 

§  504.  Act  of  November  16,  1837— Notaries  Shall  Use 
Seal. — This  act  (taking  effect  from  passage)^''  provided 
that  notaries  shall  use  a  seal  of  office,  which  shall  be 
affixed  to  all  certificates  by  them,  but  it  does  not  pre- 
scribe the  form  of  same. 

§  505.  Act  of  February  5,  1840— Use  of  Seal  Required.— 
This  act  (taking  effect  March  16,  1840f^  required  dis- 
trict judges,  chief  justices,  notaries  public,  and  two  jus- 
tices of  the  peace  to  attach  the  seal  of  his  office  to  cer- 
tificates of  acknowledgment  and  proof.     It  also  required 

32  See  post,  §§  512,  515. 

33  Post,  §  518. 

34  Frost  V.  V^olf,  77  Tex.  460,  19  Am.  St.  Eep.  76,  14  S.  W.  440; 
Torn  V.  Sayers,  64  Tex.  342. 

35  1  L.  T.  1211.  See  H.  D.  2752,  2755. 

36  Eiviere  v.  Wilkens,  72  S.  W.   608. 

37  1  L.  T.  1358. 

38  2  L.  T.  329.  ' 


213  .  SEALS.  S^SOe-SOg" 

the  use  of  private  seals  or  scrolls  by  grantors,  but  pri- 
vate seals  and  scrolls  were  again  abrogated  by  the  acts 
of  February  2,  1858,^^  and  April  28,  1873.^^ 

§  606.  Act  of  February  3,  1841 — Use  of  Seal  Required. — 
This  act  (taking  effect  from  passage)  *^  required  dis- 
trict judges  and  chief  justices  of  the  county  court  to 
certify  to  acknowledgments  of  married  women  under 
seal.  It  also  required  married  women  to  use  private 
seals  on  their  deeds.**^ 

§  507.  Act  of  February  5,  1841 — Use  of  Seal  Required. — 
This  act  (taking  effect  March  17,  1841)*^  provided  that 
when  deeds,  etc.,  are  acknowledged  or  proven  abroad 
before  any  circuit  or  supreme  judge  or  chancellor  of 
the  United  States  of  America,  and  certified  by  him, 
and  the  certificate  of  the  chief  magistrate  of  the  nation 
as  to  his  official  character  under  the  great  seal  of 
United  States,  or  before  any  judge  of  the  superior  court 
or  any  other  nation  or  kingdom,  and  certified  by  such 
judge  and  countersigned  by  the  chief  magistrate  or 
sovereign  of  such  other  nation,  under  the  great  seal 
or  by  the  consul  or  minister  of  Texas,  resident  there, 
shall  be  entitled  to  record. 

§  508.  Act  of  January  10,  1845— Notarial  Seal. — This  act 
(taking  effect  March  15,  1845)  *^  required  notaries  pub- 
lic to  have  a  seal  of  office  with  the  words  "notary  pub- 
lic" and  the  county  around  the  margin,  with  a  star  of 
five  points  in  the  center,  and  that  no  act  shall  be  valid 
unless  the  seal  of  office  of  such  notary  is  appended. 

39  4  L.  T.  968. 

40  7  L.  T.  503.  See  English  v.  Helms,  4  Tex.  231;  Harris  v. 
Cato,  26  Tex,  339;  Winbish  v.  Holt,  26  Tex.  676.  As  to  use  of  seals 
by  county  clerks,  see  ante,  §  486. 

41  2  L.  T.  608. 

42  See  ante,  §  505. 

43  2  L.  T.  1633. 

44  2  L.  T.  1059. 


§§509-513  SEALS.  214= 

§  509.  Act  of  April  29,  1846— Use  of  Seal  Required. — 
This  act  (taking  effect  June  22,  1846)"*^  required  officers 
to  attach  their  seals  of  office  to  certificates  to  schedule 
of  the  wife's  separate  property. 

§  510.  Act  of  April  30,  1846— Judges  and  Notaries  to  At- 
tach Seals.— This  act  (taking  effect  June  22,  1846)*^  re- 
quired the  judges  of  the  supreme  or  district  courts  or 
notary  public  to  attach  his  seal  to  certificates  of  ac- 
knowledgments of  married  women,  and  if  acknowledged 
out  of  this  state,  but  within  the  United  States  or  their 
territories,  judges  of  the  courts  of  record  shall  use  their 
seals;  and  if  out  of  United  States,  public  ministers, 
charg6  d'affaires  or  consuls  shall  attest  their  certificates 
Avith  their  seals. 

§  511.  Act  of  May  8,  1846 — Commissioners  of  Deeds  to 
Use  Seals.— This  act  (taking  effect  June  22,  1846),*^  pro- 
viding for  commissioners  of  deeds  of  other  states,  re- 
quires them  to  use  seals,  but  does  not  prescribe  the 
form  of  same. 

§  512.  Act  of  May  11,  1846^*^— Seal  of  District  Court.— 
This  act  required  district  courts  to  have  a  seal  with  a 
star  of  five  points  in  the  center,  and  the  words  "District 

court  of  county,    Texas,"    engTaved    thereon, 

which  shall  be  attached  to  certificates,  etc.,  but  that 
private  seals  may  be  used  until  others  are  procured. 

§  513.  Act  of  May  13,  1846— Notarial  Seals.— This  act 
(taking  eft'ect  June  22,  1846)'*'*  required  notaries  public 
to  provide  a  seal  of  office  whereon  shall  be  engraved  in 
the  center  a  star  of  five  points,  and  the  words  "Notary 
public,  county  of  — — — ,  Texas,"  around  the  margin, 

45  2  L.  T.  1459. 

46  2  L.  T.  1462. 

47  2  L.  T.  1493. 

48  2  L.  T.  150. 

49  2  L.  T.  1647. 


215  SEALS.  §§  514-518 

and  he  shall  authenticate  his  official  acts  therewith.^** 
Placing  "Texas"  between  points  of  star  on  notary  seal 
does  not  invalidate  it.®^ 

§  514.  Act  of  May  12,  1846 — Seals  of  County  Court.— This 
act  (taking  effect  July  13,  1846)^^  made  the  seal  of  the 
county  court  the  seal  of  the  recorder,  and  again  re- 
quired officers  authenticating  deeds,  etc.,  to  use  seals 
of  their  offices. 

§  515.  Act  of  May  13,  1846— Seals  of  County  Court.— This 
act  ( taking  effect  July  13,  1846)  ^^  required  county 
clerks  to  provide  a  seal,  whereon  shall  be  engraved  the 

words,  "County  court,  county,  Texas,"  which 

shall  be  used  in  the  authentication  of  official  acts  of 
said  court,  the  clerks  and  chief  justices  thereof,  and 
until  such  seals  are  procured  private  seals  may  be  used. 

§  516.  Act  of  March  16,  1848— Seals  of  County  Court.— 
This  act  (taking  effect  August  7,  1848),®*  required 
county  courts  to  have  a  seal  whereon  shall  be  engraved 

the  words,  "County  court,  county,  Texas,"  the 

blank  to  be  filled  with  the  name  of  the  county,  which 
shall  be  used  in  the  authentication  of  official  acts  of 
said  court  or  county  commissioners,  when  performing 
the  duties  of  the  chief  justices. 

§  517.  Act  of  November  24,  1851— Validates  Seal  Used  by 
Galveston  County  Court.— This  act  validates  certain  seals 
used  by  county  officers  of  Galveston  County.  ®® 

§  518.  Acts  of  April  6,  1861,  and  January  14,  1862— Use 
of  Seals  Required.— These  acts   (taking  effect  from  pas- 

50  Stephens  v.  Motl,  81  Tex.  120,  16  S.  W.  731. 

51  Stringfellow  v.  Thomijson,  1  C.  A.  565. 

52  2  L.  T.  15-12. 

53  2  L.  T.  1640. 
64  3  L.  T.  113. 
55  Post,  §  1027. 


§§  519-522 


SEALS.  216 


sage)*'®  again  required  all  officers  to  attest  acknowledg- 
ments and  proof  under  their  official  seals.  They  also 
provided  that  deeds  of  railroad  companies  by  their  presi- 
dents, attested  by  the  seal  of  the  company,  shall  be  en- 
titled to  registration  without  other  certificate. 

§  519.  Act  of  December  31,  1861— Seals  of  Commissioners 
of  Deeds.— This  act  (taking  effect  from  passage),^''  pro- 
viding for  appointment  of  commissioners  for  the  Choc- 
taw, Chickasaw,  Cherokee  and  Creek  nations  of  In- 
dians, required  the  commissioners  to  procure  a  seal  with 
a  star  of  five  points  in  the  center,  and  the  words  "Com- 
missioner of  the  state  of  Texas"  engraved  thereon,  with- 
out which  their  acts  shall  be  void. 

§  520.  All  Subsequent  Acts  Required  the  Use  of  Seals. — 
The  acts  of  March  6,  1863,  November  13,  1866,  August 
8,  1870,  May  6,  1871,  Kevised  Statutes  of  1879,  April 
1,  1881,  and  Revised  Statutes  of  1895,  required  officers 
to  attest  their  certificates  of  acknowledgment  and  proof 
with  their  official  seal.^® 

§  521.  Act  of  June  16,  1876— Seal  of  County  Court.— This 
act  (taking  effect  from  passage)  ^^  provides  that  county 
courts  of  each  county  in  this  state  shall  have  a  seal  with 
a  star  of  five  points  in  the  center,  and  the  words  "County 
court  of  [insert  the  name  of  the  county]  county,  Texas," 
engraved  thereon ,  an  impression  of  which  seal  shall  be 
used  in  the  authentication  of  all  official  acts  of  the  clerk. 

§  522.  Act  of  June  24,  18766o_Seals  of  Notaries.— This 
act  provides  for  seal  of  notary  whereon  shall  be  en- 
graved a  star  of  five  points,  and  the  words  "Notary  pub- 

56  5  L.  T.  373,  501. 

57  5  L.  T.  465. 

58  5  L.  T.  614,  1128;  6  L.  T.  223,  980;  Rev.  Stats.  1879,  art.  4308; 
9  L.  T.  187;  Rev.  Stats.  1895,  art.  4616. 

59  8  L.  T.  859. 

60  8  L.  T.  865. 


217  SEALS.  §§  523-526 

lie,  Co.  of ,  Texas,"  around  the  margin,  the  blank 

to  be  filled  with  name  of  county  of  officer. 

§  523.  Act  of  August  18,  1876— Seals  of  County  Court.— 
This  act  (taking  effect  from  passage),®*  amending  sec- 
tion 22  of  act  of  June  16,  1876,  provides  that  county 
courts  of  each  county  in  this  state  shall  have  a  seal  with 
a  star  of  five  points  in  the  center,  and  the  words  "County 
court  [insert  the  name  of  the  county]  county,  Texas," 
engraved  thereon,  an  impression  of  which  shall  be  used 
in  the  authentication  of  official  acts  of  the  clerk. 

§  524.  Act  of  April  18,  1879«2_Validated  Certain  Notarial 
Seals. — This  act  provided  that  the  acts  of  notaries  pub- 
lic appointed  by  the  authority  of  the  laws  of  Texas,  evi- 
denced by  the  impression  of  a  notarial  seal  having  the 
word  "Texas"  engraved  between  the  points  of  the  star 
thereon,  shall  be,  and  they  are  hereby,  made  as  valid 
and  binding  as  though  the  word  "Texas"  had  been  en- 
graved on  the  margin  of  the  seal. 

§  525.  Act  of  March  18,  1881«3— Validated  Certain  No- 
tarial Seals. — This  act  provided  that  all  acts  of  notaries 
public  appointed  by  authority  of  the  laws  of  the  State  of 
Texas,  evidenced  by  the  impression  of  a  notarial  seal, 
having  the  word  "Texas"  engraved  just  over  the  points 
of  the  star  thereon,  also  where  the  word  "Texas"  is  en- 
graved between  the  points  of  the  star,  and  county  of  the 
residence  of  the  authenticating  officer  under  the  star; 
all  seals  having  the  words  " — county,  Texas,"  in- 
stead of  "The  county  of  ,  Texas,"  are  hereby 

made  as  valid  and  binding  as  though  the  word  "Texas" 
had  been  engraLved  on  the  margin  of  the  seal. 

§  526.  Act  of  April  1,  1881— Notarial  Seal.— This  act 
(taking  effect  from  passage)  ***  required  notaries  to  pro- 

61  8  L.   T.   1009. 

62  8  L.  T.  1408. 

63  9  L.  T.  143. 

64  9  L.   T.    187. 


§  527  SEALS.  218 

vide  a  seal  of  office  wherein  shall  be  engraved  in  the 
center  a  star  of  five  points  and  the  words  "Notary  pub- 
lic, county  of ,  Texas,"  around  the  margin  (the 

blank  to  be  filled  with  the  name  of  the  county  and  their 
authenticating  official  acts  therewith). 

§  527.  Act  of  April  5,  1889«"^— Validated  Certain  Notarial 
Seals. — This  act  provided  that  all  official  acts  of  no- 
taries public,  appointed  by  authority  of  the  laws  of  the 
state  of  Texas,  as  evidenced  by  the  impress  of  the  no- 
tarial seal,  having  the  words  "Texas"  engraved  just 
over  the  points  of  the  star  thereof,  also  where  the  word 
"Texas"  is  engraved  between  the  points  of  the  star,  and 
the  county  of,  and  the  residence  of  the  authenticating 

officer  under  the  star  or  seal  having  the  words  " 

county,  Texas,"   instead    of    "The    county  of    , 

Texas,"  are  hereby  made  as  valid  and  binding  as  though 
the  word  "Texas"  had  been  engraved  on  the  margin  of 
the  seal,  shall  be  held  thereafter  to  be  notice,  and  cop- 
ies from  the  records  shall  be  admissible  in  evidence,  the 
same  as  if  the  seal  had  been  used  in  strict  conformity 
with  law.^^ 

65  9  L.  T.  1149. 

66  See  "Validating  Statutes,"  post,  §§  1016-1068. 


219  AUTHENTICATION  WITHOUT  THE  STATE.  §  528 


CHAPTER  XIV. 

AUTHENTICATION  WITHOUT  THE  STATE. 

§  528.  Generally — Must  be  taken  in  compliance  with  Texas  laws. 

§  529.  Foreign   language. 

§  530.  Form  and  requirements  of  certificates  and  acknowledgments. 

§  531.  Authority   shown   by   certificate   of   conformity   when. 

§  532.  Official  character  shown  by  certificate. 

§  533.  Certificate  must  show  that  the  court  before  whom  acknowl- 
edgment is  made  is  a  court  of  record. 

§  534.  Other  rule  in  Illinois. 

§  535.  Judges   of   courts   of   record   no   authority   after   1879. 

§  536.  Acknowledgment  authorized  without  the  state  by  act  of 
February   5,   1841. 

§  537.  As  to   acknowledgments   of  married  women. 

§  538.  Certificates  of  conformity. 

§  539.  Continued   in   force. 

§  540.  Acknowledgments  of  married  women  by  act  of  April  30,  1846. 

§  541.  Eepealed  former   laws. 

§  542.  Certificate   of  conformity  under  above   act. 

f  543.  Authority  continued. 

§  528.  Generally — Must  be  Taken  in  Compliance  with 
Texas  Laws. — It  is  well  settled  that  acknowledgments 
and  proof  of  instruments  of  writing  for  record,  and 
certificates  of  same  made  in  foreign  jurisdictions  or 
states,  concerning  Texas  lands,  to  be  valid  must  be  made 
in  compliance  with  the  laws  of  Texas.  In  other  words, 
the  same  manner  of  taking  the  acknowledgment  and 
same  form  of  certificate  used  within  the  state  shall 
be  used  without  it,  and  unless  the  officer  in  the  for- 
eign country  or  state  is  authorized  to  take  acknowledg- 
ments or  proof  by  the  statutes  of  Texas,  his  certificate 
is  not  aided  by  a  certificate  showing  that  he  was  au- 
thorized to  take  acknowledgments  or  proof  by  the  laws 
of  the  foreign  state  or  country.* 

1  Sartor  v.  Bolingcr,  59  Tex.  411;  Baker  v.  Wescott,  73  Tex.  129, 
11  S.  W.  157 J  Birdseye  v.  Rogers  (Tex.  Civ.  App.),  26  S.  W.  841. 


§§  529-532     AUTHENTICATION  WITHOUT  THE  STATE.  220 

§  529.  Foreign  Language.— It  is  held  in  Sartor  v.  Bol- 
inger  that  the  court  will  not  take  judicial  knowledge 
of  the  meaning  of  a  certificate  in  a  foreign  language; 
it  should  be  translated.^ 

§  530.  Form  and  Requirements  of  Certificates  and  Ac- 
knowledgments.— For  the  form  and  requirements  of  cer- 
tificates of  acknowledgments  and  j) roofs  taken  in  ju- 
risdictions without  this  state,  they  being  the  same  as 
those  within,  for  the  conveyance  of  Texas  lands,  see 
ante,  §§  125-238,  274-348,  349-483. 

§  531.  Authority  Shown  by  Certificate  of  Conformity 
When. — Certificates  of  conformity,  to  wit,  by  the  chief 
magistrate  or  sovereign,  as  to  ofiicer's  authority,  were 
required  from  February  5,  1841,  to  July  13,  1846  (the 
time  of  the  taking  effect  of  the  act  of  May  12,  1846), 
but  not  afterward.^  The  general  rule  is  that  certifi- 
cates of  conformity  are  not  necessary  unless  required 
by  statute.^ 

§  532.  Official  Character  Shown  by  Certificate. — While 
certificates  of  conformity  were  not  required  after  the 
act  of  May  12,  1846,  the  oflacial  character  and  author- 
ity of  the  officer  should  be  shown  by  his  certificate; 
for  instance,  that  he  is  a  judge  or  clerk  of  a  court  of 
record  having  a  seal,  etc.,  if  such  is  the  case.^  It  is 
held  that  when  there  was  nothing  in  the  certificate  of 
acknowledgment  to  a  deed  in  1842,  purporting  to  con- 
vey land  in  Texas,  which  shows  that  the  person  who 
certified  to  the  acknowledgment  as  a  judge  of  one  of 
the  superior  courts  of  the  several  American  states  was 
a  judge  of  a  superior  court  of  record  in  such  state,  the 
authentication  was  not  in  accordance  with  the  statute 

2  Ante,   §   528. 

3  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  Carpenter  v.  Dexter,  75 
U.  S.  (8  Wall.)  513,  19  L.  ed.   426. 

4  See  1  Century  Digest,  1000. 

5  Ante,  §§  133-136. 


221  AUTHENTICATION  WITHOUT  THE  STATE.     §§  533,  534 

then  existing.  It  cannot  be  judicially  known  that  an 
associate  judge  of  the  sixth  judicial  district  in  the  state 
of  Maryland  was  a  judge  of  a  superior  court  of  record 
in  1842.®  Under  the  act  of  1846  it  was  not  shown  by 
the  certificate  that  the  presiding  judge  of  the  county 
court  in  the  state  of  Arkansas  was  a  judge  of  a  court 
of  record,  and  it  was  held  not  properly  registered,  and 
that  the  testimony  of  the  officer  that  it  was  properly 
taken  by  him  does  not  validate  the  acknowledgment^ 

§  533.  Certificate  Must  Show  that  the  Court  Before  Which 
Acknowledgment  is  Made  is  a  Court  of  Record. — Under  a 
statute  authorizing  instruments  acknowledged  in  other 
states  before  officers  holding  seals  of  courts  of  record, 
a  certificate  of  acknowledgment  under  the  seal  of  a  court 
of  another  state,  failing  to  state  that  such  court  was  a 
court  of  record,  or  that  the  officer  was  the  holder  of  the 
seal,  and  it  being  not  otherwise  shown,  is  defective.* 

But  it  is  held  in  Texas,  where  an  affidavit  was  made 
before  a  judge  of  a  court  in  North  Carolina,  that  the 
fact,  appearing  by  the  certificate  of  the  clerk,  that  the 
court  had  a  clerk  and  a  seal,  was  sufficient  evidence 
that  it  was  a  court  of  record.^ 

§  534.  Other  Rule  in  Illinois. — But  it  is  held  in  Illinois 
that  in  the  absence  of  a  statute  requiring  it,  the  cer- 
tificate of  acknowledgment  taken  by  an  officer  of  an- 
other state  need  not  contain  evidence  of  his  official  char- 
acter.*^ 

6  Hill  V.  Taylor,  77  Tex.  295,  14  S.  W.  366;  Texas  Land  Co.  v. 
Williams,  51  Tex.  58;  Settegast  v.  Charpiot  (Tex.  Civ.  App.),  28 
S.  W.  580. 

7  Craddock    v.    Merrill,    2   Tex.    496. 

8  Ante,  §  532;  Fogg  v.  Holcomb,  64  Iowa,  621,  21  N.  W.  Ill;  Mc- 
Cammon  v.  Beaupre,  25  U.  C.  Q.  B.  419;  Torrey  v.  Forbes,  94  Ala. 
135,  10  South.  320,  17  L,  R.  A.  113;  McKenzie  v.  Jackson,  82  Ga. 
80,  8  S.  E.  77;  Fisher  v.  Vaughn,  75  Wis.  609,  44  N.  W.  831,  833. 

0  Moore  v.  Carson,  12  Tex.  66.     See  ante,  §  133. 
10  Secrist  v.  Green,  3  Wall.   (U.  S.)   744,  18  L.  ed.  153.     See  Car- 
penter V.  Dexter,  8  Wall.  (U.  S.)  513,  19  L.  ed.  426. 


535-537     AUTHENTICATION  WITHOUT  THE  STATE.  222 


§  535.  Judges  of  Courts  of  Record  had  No  Authority  After 
1879— A  jiido-e  of  a  court  of  record  out  of  this  state 
(in  Alabama)  had  no  authority  to  take  acknowledg- 
ments after  the  adoption  of  the  Revised  Statutes  of 
1879,  for  conveyance  of  Texas  lands.**  An  acknowledg- 
ment taken  in  Louisiana  before  recorder  and  ex-officio 
notary  in  1878,  though  not  signed  as  notary,  is  suf- 
ficient.*^ 

§  536.  Acknowledgments  Authorized  Without  the  State  by 
Act  of  February  5,  1841.— Previous  to  the  act  of  February 
5  (March  17),  1841,*^  there  was  no  provision  made  for 
the  acknowledgment  or  proof  of  conveyances  without  the 
state  of  Texas  for  lands  located  within  said  state.  This 
act  provided  that  every  deed,  etc.,  hereafter  to  be  made 
and  recorded  shall  be  duly  registered  if  executed  abroad, 
if  acknowledged  or  proved  by  two  subscribing  witnesses 
before  any  circuit  or  supreme  judge  or  chancellor  of  the 
United  States  of  North  America,  certified  by  him,  with 
the  certificate  of  the  chief  magistrate  of  the  nation  as 
to  the  official  character  of  him  taking  the  acknowledg- 
ment or  probate,  and  the  seal  of  the  United  States  there- 
to annexed.  Or  if  so  acknowledged  or  proved  before 
any  judge  of  a  supreme  court  of  record,  or  in  any  such 
court  of  any  other  nation  or  kingdom  and  certified  by 
such  judge,  or  the  record  thereof  exemplified,  and  either 
so  counter-certified  by  the  chief  magistrate  or  sovereign 
of  such  other  nation  or  kingdom,  under  the  great  seal, 
or  by  the  consul  of  this  republic,  or  minister  resident 
there,  the  same  shall  be  admitted  to  record,  and  shall 
be  good  and  effectual,  as  aforesaid,  from  and  after  regis- 
tration. 

§  537.  As  to  Acknowledgments  of  Married  Women. — 
There  may  be  some  question  of  this  act  authorizing  ac- 

11  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530. 

12  Wilson  V.  Simpson,  68  Tex.  313,  4  S.  W.  839.     Eor  authority  of 
officers,  see  post,  ehaptors  18,  19. 

13  2   L.   T.   633. 


223  AUTHENTICATION  WITHOUT  THE  STATE.     §§  538-540 

knowledgments  by  married  women  without  the  state, 
although  its  terms  are  general  enough  to  include  hers; 
the  doubt  arising  from  the  fact  that  the  law  passed  by 
the  same  legislature  providing  for  the  taking  of  her  ac- 
knowledgments makes  no  provision  for  same  to  be  taken 
without  the  state.  ^'* 

§  538.  Certificates  of  Conformity. — Certificates  by  the 
chief  magistrate  or  sovereign  of  the  foreign  nation  as  to 
the  official  character  and  qualification  of  the  officer  tak- 
ing the  acknowledgment  were  required  by  this  act.^^ 

§  539'.  Continued  in  Force — ^At  all  times  after  the  tak- 
ing effect  of  this  act,  single  acknowledgments,  at  least, 
were  authorized  to  be  taken  without  the  state,  but  the 
requirements  of  the  certificate  and  authority  of  officers 
was  changed  from  time  to  time. 

§  540.  Acknowledgments  of  Married  Women  by  Act  of 
April  30,  1846— The  act  of  April  30  (June  22),  1846,*« 
providing  the  method  of  conveying  property  in  which 
the  wife  has  an  interest,  provides  that  when  the  husband 
and  wife  have  signed  and  sealed  any  deed  or  other  in- 
strument out  of  this  state  but  within  the  United  States 
or  any  of  their  territories,  if  the  wife  appear  before  any 
judge  of  a  court  of  record  having  a  seal  in  any  of  said 
states  or  territories,  and  be  examined  and  make  the  dec- 
larations and  acknowledgments  provided  for  in  section 
1  of  this  act,*''  and  such  judge  shall  make  a  certificate 
thereof  in  the  manner  provided  for  in  said  section  and 
attest  the  same  under  his  hand  and  the  seal  of  his  court, 
such  deed  shall  have  the  same  force  and  effect  as  if  the 
same  had  been  done  in  this  state,  before  any  of  the  of- 
ficers named  in  said  section;  and  when  any  such  deed 
shall  have  been  signed  and  sealed  out  of  the  United 

14  See  post,  §  627. 

15  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

16  2  L.  T.  1462. 

17  See  post,  §  637;  P.  D.  1003. 


§§  541-543     AUTHENTICATION  WITHOUT  THE  STATE.  224 

States  such  examinationiS,  declarations  and  acknowledg- 
ments, may  be  taken  or  made  before  any  public  minister, 
charge  d'affaires,  or  consul  of  the  United  States  and  the 
certificate  of  such  minister,  charg6  d'affaires  or  consul 
in  the  manner  and  form  provided  for  in  said  section, 
and  attested  under  their  hand  and  official  seal,  shall 
have  the  same  force  and  effect  as  if  such  examination, 
declaration  and  acknowledgment  had  been  taken  or 
made  and  certified  in  this  state  before  any  of  the  officers 
named  in  the  said  first  section/* 

§  541.  Repealed  Former  Laws. — This  act  repealed  all 
former  laws  concerning  the  mode  of  conveyance  in  which 
the  wife  has  an  interest.^^ 

§  542.  Certificate  of  Conformity  Under  Above  Act. — By 
this  act,  and  subsequent  to  this  time,  no  certificate  of 
conformity  was  required.^**  It  remained  in  force  until 
the  adoption  of  the  Revised  Statutes  of  1879,  but  the 
authority  was  in  the  meantime  extended  to  still  other 
officers,  by  the  acts  of  May  8,  June  22,  December  31, 
1861,  November  13,  1866,  and  May  6,  1871.^^ 

§  543.  Authority  Continued. — At  all  times  after  the 
taking  effect  of  this  act  (June  22,  1846),  acknowledg- 
ments of  married  women  were  authorized  to  be  taken 
abroad,  and  possibly  from  the  taking  effect  of  the  act 
of  February  5,  1841.^2 

18  Post,   §§   637,   638. 

19  As  to  its  effect  on  the  authority  of  officers  previously  named, 
Bee  post,  §§  627-631,  641. 

20  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

21  For  authority  of  the  different  officers,  see  chapters  18,  19. 

22  See  post,  §  627.  For  officers  authorized  to  act  within  the  United 
States,  see  post,  §§  718-755.  Officers  authorized  to  act  without  the 
United  States,  see  post,  §§  756-767.  How  made  and  taken,  ante,  §§ 
68-110.  Certification,  ante,  §§  125-238.  Acknowledgments  of  married 
women,  ante,  §§  238-273.  Certification  of  acknowledgments  of  mar- 
ried women,  ante,  §§  274-348.  Proof  of  instruments  for  record,  ante, 
§§  349-483.  Seals,  ante,  §§  484-527.  Who  may  make  acknowledgments, 
post,  §§  544-572.  Who  may  take  acknowledgments,  post,  §§  573-595. 
Curing  defective  acknowledgments,  post,  §   992. 


225  WHO  MAY  MAKE  ACKNOWLEDGMENTS.     §§  544,  545 

CHAPTER  XV. 

WHO  MAY  MAKE  ACKNOWLEDGMENTS. 

§  544.  Generally. 

§  545.  Officer's  deputy. 

§  546.  The  law  elsewhere. 

§  547.  Agent  or  attorney. 

§  548.  Attorney   of   married   woman. 

§  549.  Firm  as  attorney  in  fact. 

§  550.  Irregular  certificate  of  attorney's  acknowledgment. 

§  551.  Partner   may   acknowledge. 

§  552.  Either  partner  may  acknowledge   in  firm   name. 

§  553.  Corporations   may   acknowledge. 

§  5.54.  Not  necessary  to  state  that  it  was  the  act  of  the  corpora- 

tion. 

§  555.  By  vice-president. 

§  556.  Attorney  in  fact   not  required  to  use  corporate  seal. 

§  557.  Known   to   officer,   etc. 

§  558.  Eailroad  corporations — No  acknowledgment  required  when. 

§  559.  Acknowledgment   required   after   1871. 

§  560.  Married  women — Husband  must  join. 

§  561.  Held  that  it  must  be  acknowledged  by  husband  also. 

§  562.  Husband's  acknowledgment  not  necessary. 

§  563.  Acknowledgments  by  husband  and  wife  need  not  Be  at 

same  time. 

§  564.  When  wife  is  abandoned  by  husband. 

§  565.  When  husband  is  insane. 

§  566.  Married  woman  as  agent. 

§  567.  Wife  cannot  authorize  husband  to  act  for  her. 

§  568.  Married  woman  may  convey  by  attorney. 

§  569.  Wife's   executory   contracts. 

§  570.  Idem. 

§  571.  Special    commissioner. 

§  572.  Judge  of  first  instance. 

(See  "Proof  by  Subscribing  Witnesses.") 

§  544.    Generally. — Any   person   authorized   to   make 
the  conveyance  may  acknowledge  the  same.* 

§  545.     Officer's  Deputy.— In  this  state  a  sheriff's  dep- 
uty, being  an  officer  recognized  by  law,  could  make  the 

1   Eobinson   v.   Mauldin,   11   Ala.   977;   Talbert   v.   Stewart,   39   Cal. 
612. 

15 


§§  546-549     WHO  MAY  MAKE  ACKNOWLEDGMENTS.  226 

sale  and  conveyance  in  his  own  name.  In  which  case 
he  is  the  proper  person  to  acknowledge  the  deed.^  Or 
he  conld  make  the  deed  and  acknowleclgment  in  the 
name  of  his  principal  by  himself  as  depnty.^ 

§  546.  The  Law  Elsewhere. — Bnt  elsewhere  it  has  been 
held  that  the  deputy  sheriff's  deed  must  be  acknowl- 
edged by  him  in  the  name  of  and  for  his  principal.* 

§  547.  Agent  or  Attorney. — Authority  given  to  an 
agent  or  attorney  to  execute  an  instrument  implies  the 
authority  to  acknowledge  the  same.^ 

§  548.  Attorney  of  Married  Woman. — A  husband  can- 
not be  authorized  by  power  of  attorney  executed  by  his 
wife  to  dispose  of  her  property.*^  But  a  married  woman 
joined  by  her  husband  may  give  a  valid  power  of  attor- 
ney, acknowledged  in  the  manner  prescribed  by  law  for 
the  execution  of  her  deeds,  to  another  party  to  convey 
her  lands.  And  such  party  could  make  a  valid  acknowl- 
edgment of  his  deeds.'' 

§  549.  Firm  as  Attorney  in  Fact. — Where  a  power  is 
conferred  on  a  firm  to  execute  a  deed,  a  member  of  the 
firm  is  authorized,  as  the  agent  of  the  firm,  to  execute 
and  acknowledge  the  deed.** 

2  Davis  V.  Eankin,  50  Tex.  286;  Miller  v.  Alexander,  13  Tex.  506; 
Townes  v.  Harris,  13   Tex.   512. 

3  Terrell  v.  Martin,  64  Tex.  127. 

4  Marx  V.  Hanthorn,  30  Fed.  579. 

5  Talbert  v.  Stewart,   39   Cal.   602. 

6  Cannon  v.  Boutwell,  53  Tex.  627;  Peak  v.  Brinson,  71  Tex.  311, 
11  S.  W.  269;  Halbert  v.  Brown,  9  Tex.  Civ.  App.  335,  31  S.  W.  535. 

7  Patton  V.  King,  26  Tex.  686,  84  Am.  Dec.  596;  Warren  v.  Jones, 
69  Tex.  465,  6  S.  W.  775;  Jones  v.  Bobbins,  74  Tex.  615,  12  S.  W. 
824;  Mexia  v.  Oliver,  148  U.  S.  664,  13  Sup.  Ct.  Eep.  754,.  37  L.  ed. 
602.  Ante,  §  244.  But  see  contra,  Holladay  v.  Dailey,  86  U.  S. 
(19  Wall.)  606,  22  L.  ed.  187. 

8  McCullough  Land  and  Cattle  Co.  v.  Whitiford,  21  Tex.  Civ. 
App.  314,  50  S.  W.   1043. 


227  WHO  MAY  MAKE  ACKNOWLEDGMENTS.     §§  550-553 

§  550.  Irreg-ular  Certificate  of  Attorney's  Acknowledg- 
ment.— A  certificate  of  acknowledgment  stating,  "Came 
R.,  by  his  attorney,  J.,  the  grantor,  with  whom  I  am 
personally  acquainted,  acknowledged  that  he  signed, 
sealed  and  delivered  the  foregoing  instrument,"  is  not 
insufficient  for  uncertainty;  the  meaning  being  reason- 
ably clear  that  J,  appeared  for  the  gTantor,  and  thus  ac- 
knowledged he  executed  the  instrument.^ 

§  551.  Partner  may  Acknowledge. — In  this  state  one 
partner  may  execute  and  acknowledge  an  instrument 
for  the  firm.  The  acknowledgment  of  a  deed  of  Leon 
Blum,  Sylvan  Blum  and  Hyman  Blum,  composing  the 
firm  of  Leon  &  H.  Blum,  signed  with  the  firm  name 
"Leon  &  H.  Blum,"  and  acknowledged  by  one  of  the 
partners,  was  sufficient.  In  that  case  the  notary  certi- 
fied "that  personally  appeared  before  me  Leon  &  H. 
Blum  by  Sylvan  Blum,  partner  of  said  firm,  known  to 
me  to  be  the  person  whose  name  is  subscribed  to  the  fore- 
going instrument  and  acknowledged  to  me  that  he  exe- 
cuted the  same  for  the  purposes  and  considerations 
therein  expressed. "^^ 

§  552.  Either  Partner  may  Acknowledge  in  Firm  Name. — 
Where  partners  as  a  firm  are  authorized  to  execute  a 
deed  under  a  power  of  attorney,  either  may  execute  and 
acknowledge  it  in  the  name  of  the  firm.**  Where  part- 
ner executes  deed  in  firm  name,  his  authority  will  be 
presumed  after  thirty  years.*^ 

§  553.  Corporations  may  Acknowledge. — The  act  of  De- 
cember 2,  1871,*^  provided  that  a  deed  sealed  with  the 
corporate  seal  and  signed  by  the  president  or  presiding 

9  Ferguson  v.  Eicketts    (Tex.  Civ.  App.),  55  S.  W.  975. 

10  Leon  &  H.  Blum  Land  Co.  v.  Dunlap,  4  Tex.  Civ.  App.  315,  23 
S.  W.  473;  Holdeman  v.  Knight,  Dall.  568. 

11  McCullough  Land  and  Cattle  Co.  v.  Whitiford,  21  Tex.  Civ. 
App.  314,  50  S.  W.   1043. 

12  Frost  V.  Wolf,  77  Tex.  461,  19  Am.  St.  Eep.  76,  14  S.  W.  440. 

13  Rev.  Stats.    1895,  art.  676. 


§§  554-556     WHO  MAY  MAKE  ACKNOWLEDGMENTS.  228 

member  or  trustee,  and  acknoAvledged  by  such  officer 
to  be  the  act  of  the  corporation,  or  proved  in  the  man- 
ner prescribed  for  other  conveyances,  may  be  recorded, 
etc.  And  that  copies  of  records  authenticated  by  the 
signature  of  the  president  and  secretary  shall  be  com- 
petent evidence.  This  act  was  re-enacted  in  1874,  1879 
and  1895. 

§  554.  Not  Necessary  to  State  that  It  was  Act  of  Corpora- 
tion— Under  the  above  act  (requiring  a  deed  of  a  cor- 
poration to  be  acknowledged  by  the  president,  to  be  the 
act  of  the  corporation),  a  certificate  of  acknowledgment 
(to  a  deed  executed  by  the  First  National  Bank)  which 
certifies  "that  this  day  personally  appeared  A.  B.,  presi- 
dent of  1st  N.  B.,  and  R.  P.,  cashier,  both  of  whom  are 
to  me  well  known,  and  severally  acknowledged  that  they 
executed  the  above  and  foregoing  instrument  for  the 
purposes  and  considerations  therein  contained,"  was 
valid.*"*  It  being  held  that  the  statement  that  he  exe- 
cuted it  for  the  purposes  therein  expressed  was  equiva- 
lent to  acknowledging  that  he  executed  it  as  the  act  of 
the  corporation. 

§  555.  By  Vice-president. — A  deed  signed  by  the  vice- 
president,  sealed  and  acknowledged  as  the  deed  of  the 
corporation,  is  valid;  the  presumption  being  that  the 
contingency  which  would  authorize  him  to  act  had 
arisen.*^ 

§  556.  Attorney  in  Fact  not  Eequired  to  Use  Corporate 
Seal— The  act  of  April  15,  1905  (taking  effect  Septem- 
ber 18,  1905),  provided  that  where  a  power  of  attorney 
is  duly  executed  and  sealed  by  a  corporation,  the  at- 
torney may  convey  and  acknowledge  in  common  form 
without  seal.     It  further  provided  that  all  conveyances 

14  Muller  V.  Boone,  63  Tex.  93;  Ballard  v.  Carmichael,  83  Tex. 
368,  18  S.  W.  734. 

15  Muller  V.  Boone,  63  Tex.  93;  Ballard  v.  Carmichael,  83  Tex.  368, 
18  S.  W.  734. 


229  WHO  MAY  MAKE  ACKNOWLEDGMENTS.     §§  557-559 

by  corporations  heretofore  executed  in  the  manner 
herein  set  forth  shall  be  held  valid  so  far  as  regards 
the  manner  of  execution.  As  the  validating  clause  is 
not  indicated  in  the  title  of  the  act,  and  as  the  said  act 
contains  two  subject  matters,  the  validating  clause  is 
probably  of  no  effect. -^^ 

§  557.  Known  to  Officer,  etc. — Under  Sayles'  Revised 
Statutes  of  1895,  article  4617,  providing  that  the  certifi- 
cate of  acknowledgment  to  the  deed  shall  certify  that  the 
person  making  it  is  the  individual  who  executed  and  is 
described  in  the  instrument,  a  certificate  of  acknowledg- 
ment by  a  corporation  by  its  vice-president  and  secre- 
tary, stating  that  J.,  vice-president,  and  E.,  secretary, 
were  well  known  to  such  officer  taking  the  acknowledg- 
ment, and  that  each  acknowledged  that  he  executed  the 
deed,  was  a  substantial  compliance  with  the  statute.  ^"^ 

§  558.  Railroad  Corporations — No  Acknowledgment  Re- 
quired When.— The  act  of  April  6,  1861,^^  provided  that 
any  deed,  etc.,  executed  by  the  president  of  any  rail- 
road company  which  has  or  may  be  incorporated  by  the 
laws  of  this  state  shall  be  attested  by  the  seal  of  said 
company,  and  it  shall  be  considered  sufficiently  authen- 
ticated to  authorize  the  county  clerk  to  record  the  same. 
This  clause  was  again  enacted  January  14,  1862. 

§  559.  Acknowledgment  Required  After  1871. — It  seems 
that  the  above  act  was  repealed  by  the  act  of  December 
2, 1871,*®  requiring  the  acknowledgments  of  corporations 
to  be  by  its  president.  The  court  held  that  under  this 
act  (a  deed  by  a  railroad  company  being  under  con- 
sideration) the  acknowledgment  or  proof  of  execution  of 
a  conveyance  by  a  corporation  was  made  necessary  be- 
fore such  conveyance  could  be  admitted  to  record,  just 

16  See  post,  §§  676,  677,  Session  Laws  of  29  Leg.,  p.  230. 

17  Zimpleman  v.  Stamps,  21  Tex.  Civ.  App.  129,  51  S.  W.  341. 

18  5  L.  T.  373. 

19  Eev.  Stats.  1895,  art.  676. 


§§560-563     WHO  MAY  MAKE  ACKNOWLEDGMENTS.  230 

as  such  acknowledgment  or  proof  of  execution  is  re- 
quired before  a  conveyance  by  a  natural  person  can  be 
recorded.^* 

§  560.  Married  Women — Husband  Must  Join. — As  a  gen- 
eral rule,  a  married  wonmn's  acknowledgment  of  an  in- 
strument affecting  the  title  to  property  in  which  she 
is  personally  interested  would  be  ineffectual  and  in- 
operative unless  her  husband  joined  in  such  instru- 
ment.^* 

§  561.  Held  that  It  Must  be  Acknowledged  by  Husband 
Also. — It  has  been  held  that  the  deed  of  a  married 
woman  not  acknowledged  by  her  husband  is  void.^^  It 
seems  from  the  statement  of  facts  that  the  husband  and 
wife  joined  in  the  deed,  and  that  the  acknowledgment  of 
the  wife  was  in  proper  form,  but  the  court  held  it  void 
because  not  acknowledged  by  the  husband.^^  The  above 
case  was  reversed  by  the  supreme  court  and  remanded 
on  other  grounds,  the  question  under  consideration  not 
being  discussed  by  the  supreme  court.^* 

§  562.  Husband's  Acknowledgment  not  Necessary. — The 
contrary,  and  it  seems  the  better,  doctrine  is  held  in 
Rork  V.  Shields,  16  Tex.  Civ.  App.  640,  42  S.  W.  1032, 
where  in  a  joint  deed  the  certificate  of  acknowledgment 
was  bad  as  to  the  husband  but  good  as  to  the  wife,  the 
registration  as  well  as  the  deed  was  held  good  as  to  the 
wife. 

§  563.  Acknowledgments  by  Husband  and  Wife  Need  not 
be  at  Same  Time. — It  is  not  necessary  that  the  husband 
and  wife  acknowledge  the  instrument  at  the  same  time. 

20  Kimmarle  &  Hirsh  v.  H.  &  T.  C.  Ey.  Co.,  76  Tex.  692,  12  S.  W. 
698. 

21  Eev.  Stats.  1895,  arts.  635,  636;  ante,  chapters  10,  11;  Cannon 
V.  Boutwell,  53  Tex.  626. 

22  Illg  V.  Garcia  (Tex.  Civ.  App.),  45  S.  W.  857. 

23  See  facts  stated  in  Garcia  v.  Illg  (Tex.  Civ.  App.),  37  S.  W. 
472. 

24  See  Illg  V.  Garcia,  92  Tex.  252,  47  S.  W.  717.     See  §  562. 


231  WHO  MAY  MAKE  ACKNOWLEDGMENTS.     §§  564-566 

She  may  acknowledge  it  at  any  time,  even  after  the 
death  of  her  husband,  while  he  would  have  to  execute 
it  during  her  lifetime  ;^^  the  reason  being  that  the  con- 
veyance not  having  devested  the  wife  of  her  title  in  her 
lifetime,  at  her  death  it  descended  to  her  heirs,  and  the 
husband  could  no  longer  render  the  conveyance  valid. 
It  is  clear  that  the  same  reason  would  not  prevent  her 
from  acknowledging  his  joint  deed  at  any  time,  for  if 
it  were  her  separate  estate  being  conveyed,  no  title 
would  vest  in  his  heirs  on  his  death.^®  And  if  it  were 
the  community  homestead  being  conveyed,  his  convey- 
ance devests  him  of  his  interest  and  would  estop  his 
legal  representatives  from  claiming  the  same  in  case  of 
his  death. ^'' 

§  564.  When  Wife  is  Abandoned  by  Husband. — If  the 
married  woman  has  been  abandoned  by  her  husband 
she  may  convey  her  property  without  his  joinder,  in 
which  case  an  acknowledginent  made  as  by  a  single  per- 
son would  be  sufficient,  no  separate  examination  or  ex- 
planation being  necessary.^*  Either  form  of  certificate 
would  be  sufficient.^^ 

§  565.  When  Husband  is  Insane. — She  has  the  same 
right  to  convey  her  property  when  her  husband  is  in- 
sane as  in  case  of  his  abandonment  of  her.*^® 

§  566.  Married  Woman  as  Agent. — In  her  capacity  as 
agent,  attorney,  trustee,  etc.,  she  may  execute  and  ac- 
knowledge an  instrument  as  a  single  person. ^^ 

25  Halbert  v.  Bennett     (Tex.   Civ.   App.),  26  S.  W.  913;   Breitling 
V.  Chester,  88  Tex.  589,  32  S.  W.  527. 

26  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  913;  Breitling 
V.  Chester,  88  Tex.  589,  32  S.  W.  527. 

27  Irion  V.  Mills,  41  Tex.  310;  Stallings  v.  Hulluni  (Tex.  Civ.  App.), 
33  S.  W.  1033,  and  post,  §  997. 

28  Wright  V.  Hays,  10  Tex.  130,  60  Am.  Dec.  200. 

29  Breitling  v.  Chester,  88  Tex.  590,  32  S.  W.  527. 

30  Clark   v.   Wicker    (Tex.   Civ.   App.),   30   S.  W.   1114. 

31  Pullam  V.  State,  78  Ala.  31,  56  Am.  Rep.  21. 


§§  567-571     WHO  MAY  MAKE  ACKNOWLEDGMENTS.  232 

§  667.  Wife  cannot  Authorize  Husband  to  Act  for  Her. — 
The  wife  cannot,  by  jiower  of  attorney,  authorize  her 
husband  to  convey  her  property.^^ 

§  568.     Married    Woman    may    Convey    by    Attorney A 

married  woman  can,  jointly  with  her  husband,  author- 
ize an  attorney  in  fact  to  make  a  valid  acknowledgment 
and  conveyance  of  her  separate  property.^^ 

§  569.  Wife's  Executory  Contracts. — ^An  executory  con- 
tract for  the  sale  of  the  homestead,  duly  executed  and 
acknowledged  by  the  husband  and  wife,  cannot  be  en- 
forced against  her.  The  reason  being  that  she  did  not 
consent  to  an  absolute  conveyance  but  only  a  contract 
for  such  conveyance,  and  that  she  would  be  deprived  of 
her  right  to  retract  in  case  the  bond  should  be  en- 
forced.^* 

§  570.  Idem. — But  it  is  held  that  a  bond  for  title  for 
the  wife's  separate  property  may  be  enforced  against 
her,  the  court  stating  that  there  "is  a  broad  distinction" 
between  the  principle  applicable  to  her  separate  prop- 
erty and  her  homestead.^^ 

§  571.  Special  Commissioner. — A  special  commissioner 
appointed  in  1834  to  issue  title  to  land  under  a  special 
concession,  on  the  19th  of  June,  1838,  appeared  before 
the  proper  officer  and  acknowledged  his  signature  to 
the  testimonio  of  title  made  by  him.  It  was  held  to  be 
duly  probated.^^ 

32  Cannon  v.  Boutwell,  53  Tex.  627;  Peak  v.  Brinson,  71  Tex. 
311,  11  S.  W.  269;  Mexia  v.  OUiver,  148  U,  S.  664,  13  Sup.  Ct.  Kep. 
754,  37  L.  ed.  602;  Cardwell  v.  Eogers,  76  Tex.  37,  12  S.  W.  1006. 
But  see  Eeagan  v.  Holliman,  34  Tex.  412. 

33  Patton  V.  King,  26  Tex.  686,  84  Am.  Dec.  596;  Warren  v.  Jones, 
69  Tex.  465,  6  S.  W.  775;  Jones  v.  Bobbins,  74  Tex.  615,  12  S.  W. 
824.     And  see  ante,  §  244. 

34  Jones  V.  Goff,  63  Tex.  253;  Jones  v.  Bobbins,  74  Tex.  618,  12 
S.  W.  824;   Warren  v.  Jones,  69  Tex.  467,  6   S.  W.  775. 

35  Angier  v.  Coward,  79  Tex.  555,  15  S.  W.  698. 

36  Fulton  V.  Bayne,  18  Tex.  50. 


233  WHO  MAY  MAKE  ACKNOWLEDGMENTS.  §  572 

§  572.  Judge  of  First  Instance — Where  a  deed  was  ex- 
ecuted in  1835  before  "A,"  as  second  judge  of  the  first 
instance,  acting  with  two  instrumental  and  two  assist- 
ing witnesses,  appeared  before  the  county  clerk  of 
Milam  county  on  the  3d  of  April,  1839,  and  acknowl- 
edged his  own  signature,  and  made  oath  to  the  signa- 
ture of  the  grantor,  it  was  held  that  the  deed  was  duly 
probated  for  record.  It  seems  that  it  was  upon  the 
theory  that  the  judge  who  acknowledged  his  signature 
was  a  subscribing  witness  under  the  law  then  in  force.^'' 

37  McKissick  v.  Colquhoun,  18  Tex.  152;  Howard  v.  Colquhoun, 
28  Tex.  134;  Paschal  v.  Perez,  7  Tex.  357.  See  "Proof  by  Subscrib- 
ing Witnesses,"  chapter  12. 


§  573  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  234 


CHAPTER  XVI. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS  AND  PROOF- GEN- 

BEALLY. 

§  573.  Interest   disqualifies. 

§  574.  Stockholder   of    corporation. 

§  575.  Officers   of   corporation. 

§  576.  Commission   as   trustee. 

§  577.  Preferred  creditor. 

§  578.  Deputy    of    interested    party. 

§  579.  Agent  or  attorney. 

§  580.  Idem. 

§  581.  By  partner  of  grantee. 

§  582.  Eelatio-nship. 

§  5SB.  Husband   of   grantee. 

§  584.  Attesting   witnesses. 

§  585.  De  facto   officers. 

§  586.  Ex-officio  officers. 

§  587.  Deputies  may  take  wken. 

§  588.  Deputy  county  clerks. 

§  589.  Deputy  and  "pro  tem"  county  clerks. 

§  590.  Deputy    district    clerks. 

§  591.  Deputy  justices  of  the  peace. 

§  592.  Deputy  district   clerks. 

§  593.  Presumptions. 

§  594.  Judicial  knowledge  of  authority  of  officers. 

§  595.  Extraterritorial  authority. 

For  authorized  officers  prior  to  December  20,  1836,  see  ante, 
§§  5-21. 

For  authorized  officers  subsequent  to  December  20,  1836,  see 
chapters   17-27. 

§  573.  Interest  Disqualifies. — As  a  general  rule,  an  ac- 
knowledgment taken  by  an  interested  party  is  a  null- 
ity.* But  where  the  rights  of  others  have  intervened, 
interest  will  not  disqualify  the  officer  unless  his  inter- 
est is  shown  by  the  certificate  and  deed.  It  cannot  be 
shown  by  parol  evidence,  after  the  rights  of  others  have 
intervened,  that  the  record  is  a  nullity.^     It  is  held  in 

1  Brown  v.  Moore,  38   Tex.   646. 

2  Titus  V.  Johnson,  50  Tex.  240;  S.  W.  Mfg.  Co.  v.  Hughes    (Tex. 
Civ.  App.),  60  S.  W.  687;  Cooper  v.  Hamilton,  56  Am.  St.  Rep.  801, 


235  WHO  MAY  TAKE  ACKNOWLEDGMENTS.     §§  574-576 

Alabama  that  acknowledgment  taken  by  grantee  is  not 
void,  and  cannot  be  assailed  in  a  collateral  attack.^ 

§  574.  Stockholder  of  Corporation. — A  notary  who  is  a 
stockholder  in  a  building  and  loan  association  is  dis- 
qualified from  taking  an  acknowledgment  of  a  mortgage 
to  it  by  reason  of  his  interest.  And  an  acknowledg- 
ment invalid  for  such  reason  is  not  one  which  can  be 
reformed  or  corrected.^  An  acknowledgment  before  a 
notary,  who  is  a  director  of  a  corporation  which  is  the 
grantee,  is  void.^  In  these  cases  rights  of  other  parties 
had  not  intervened.® 

§  575.  Officers  of  Corporation. — In  other  states  it  is  held 
that  an  officer  of  a  corporation  is  not  disqualified  un- 
less he  is  also  a  stockholder.''  Where  it  is  unnecessary 
for  a  deed  of  a  corporation  by  its  president  to  be  at- 
tested, yet  it  is  attested  by  another  officer,  the  latter  of- 
ficer is  not  thereby  disqualified  from  taking  the  ac- 
knowledgment.^ Still  more  latitude  is  given  an  officer 
in  Ohio,  where  it  is  held  that  acknowledgment  of  a  mort- 
gage to  a  corporation  taken  by  a  notary  who  is  an  of- 
ficer and  stockholder  of  the  same  is  valid.*^ 

§  576.  Commission  of  Trustee. — The  commission  to  be 
received  by  a  trustee  is  sufficient  to  disqualify  him  from 

note.     See  ante,  §§  211-214,  "Certificate,  How  Far  Conclusive,"  and 
post,  §§  574-578;   Silcock  v.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W. 

939. 

3  Fearn  v.  Beirne,  129  Ala.  435.  29  South.  558;  but  see  next  sec- 
tion. 

4  Bexar  Bldg.  etc.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W. 

1081. 

5  Workman's  Mutual   Aid   Assn.   v.   Monroe     (Tex.   Civ.   App.),  53 

S.  W.   1029. 

6  See  ante,  §  573. 

7  Florida  Sav.  Bank  etc.  Exch.  v.  Rivers,  36  Fla.  575,  18  South.  850; 
Horback  v.  Tyrrell,  48  Neb.  131,  67  N.  W.  485. 

8  Sawyer  v.  Cox,  63  HI.  130. 

0  Horton  v.  Col.  Bldg.  etc.  Assn.,  6  Week.  Law  Bull.  (Ohio)  141. 
And  sec  Nicholson  v.  Gloucester  Charity  School,  93  Va.  101,  24  S.  E. 
899. 


§§  577-581     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  236 

takiiio;  the  acknowledgment  of  the  deed  of  trust.*^  And 
all  siil)so(inent  refusals  to  accept  the  trust  will  not  cure 
the  want  of  authority.-^* 

§  577.  Preferred  Creditor.— An  acknowledgment  taken 
by  a  preferred  creditor  is  a  nullity.*^ 

§  578.  Deputy  of  Interested  Party.— The  deputy  of  an 
interested  party  is  not  competent,  on  account  of  inter- 
est, to  take  the  acknowledgment.^® 

§  579.  Agent  or  Attorney.— One  who  identifies  himself 
by  placing  his  name  upon  the  face  of  the  instrument 
as  the  avowed  agent  or  attorney  of  one  of  the  parties 
is  not  competent,  as  an  ofiicer,  to  give  it  authority.  ■^'* 

§  580.  Idem. — A  married  woman's  acknowledgment 
taken  by  the  notary  who  was  the  attorney  of  her  hus- 
band, but  not  beneficially  interested  in  the  deed,  his 
name  not  appearing  in  the  deed  as  the  agent  of  either 
party,  is  valid. ^® 

§  581.  By  Partner  of  Grantee. — The  acknowledgment  of 
an  instrument  given  to  secure  a  firm  or  copartnership 
taken  by  a  partner  of  the  grantee,  is  invalid.^® 

10  Rothschild  V.  Daugher,  85  Tex.  333,  34  Am.  St.  Rep.  811,  20 
8.  W.  142,  16  L.  R.  A.  719;  Brown  v.  Moore,  38  Tex.  646. 

11  Rothschild  v.  Daugher,  85  Tex.  333,  34  Am.  St.  Rep.  811,  20 
S.  W,  142,  16  L.  R.  A.  719;  Brown  v.  Moore,  38  Tex.  646. 

12  Tittle  V.  Vanleer  (Tex.  Civ.  App.),  27  S.  W.  736.  Also  see  Jones 
V.  Porter,  59  Miss.  628;  Kimball  v.  Johnson,  14  Wis.  674;  ante,  §  573. 

13  Ewing  V.  Vannewitz,  8  Mo.  App.  602;  Tipton  v.  Jones,  57 
Tenn.  (10  Heisk.)  564;  Cook  v.  Foster,  96  Mich.  610,  55  N.  W.  1019; 
Piland  v.  Taylor,  113  N.  C.  521,  18  S.  E.  70.     See  ante,  §  573. 

14  Rothschild  V.  Daugher,  85  Tex.  333,  34  Am.  St.  Rep.  811, 
20  S.  W.  142,  16  L.  R.  A.  719;  Sample  v.  Irwin,  45  Tex.  567;  Nichols 
V.  Hampton,  46  Ga.  253;  Bierer  v.  Fretz,  32  Kan.  329,  4  Pac.  284; 
Penn  v.  Garvin,  56  Ark.  511,  20  S.  W.  410;  Brereton  v.  Bennett, 
15  Colo.  254,  25  Pac.  310. 

15  Kutch  V.  Holley,  77  Tex.  220,  14  S.  W.  32;  Daniels  v.  Laren- 
dow,  49   Tex.   216. 

16  Baxter  v.  Howell  (Tex.  Civ.  App.),  26  S.  W.  453;  City  Bank 
v.  Radtke,  87  Iowa,  363,  54  N.  W.  435. 


287  WHO  MAY  TAKE  ACKNOWLEDGMENTS.     §§  582-585 

§  582.  Relationship. — As  a  general  rule,  relationship 
of  the  officer  to  the  parties  does  not  invalidate  the  ac- 
knowledgment.*'' In  some  states,  where  property  is  con- 
veyed to  wife  as  her  separate  estate,  her  husband  may 
take  acknowledgment  of  grantor.*®  But  where  officer 
would  be  beneficially  interested,  the  acknowledgment 
would  be  void.*^ 

§  583.  Husband  of  Grantee. — In  Texas  the  husband  of 
the  grantee  is  not  qualified  to  take  the  acknowledg- 
ment of  a  married  woman,  by  reason  of  interest  in  the 
transaction,^^  and  such  defect  cannot  be  cured  by  ac- 
tion.2* 

§  584.  Attesting  Witnesses. — Attesting  witnesses  are 
not  disqualified  from  taking  acknowledgments.^^ 

§  585.  De  Facto  Officers. — An  acknowledginent  by  a  de 
facto  officer  is  good  if  it  would  be  so  if  he  were  an  offi- 
cer de  jure,  as  between  third  parties,  but  possibly  not 
so  in  his  own  behalf. ^^  And  a  special  deputy  district 
clerk  under  an  oral  appointment,  recognized  as  an  offi- 
cer by  the  parties  is  a  de  facto  officer.^*  But  there  must 
be  some  election  and  induction  in  office.^^  A  notary 
who  accepts  an  incompatible  office  is  not  a  de  facto  no- 

17  Penn  v.  Garvin,  56  Ark.  511,  20  S.  W.  410;  Gibson  v.  Norway 
Sav.  Bank,  69  Me.  579.  See  Wilson  v.  Traer,  20  Iowa,  231;  Lynch 
V.  Livingston,  6  N.  Y.  422;  Eemington  Paper  Co.  v.  O 'Dougherty, 
81  N.  Y.  474;  Welsh  v.  Lewis,  71  Ga.  387;  Helena  First  Nat.  Bank 
V.  Koberts,  9  Mont.  323,  23  Pac.  718. 

18  Nixon  V.  Post,  13  Wash.  181,  43  Pac.  23;  Kimball  v.  Johnson, 
14  Wis.   674. 

19  Jones  V.  Porter,  59  Miss.  628. 

20  Silcock  V.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939. 

21  Silcock  v.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939. 

22  Baird  v.  Evans,  58  Ga.  350;  Sawyer  v.  Cox,  63  111.  130;  Tren- 
with  V.  Smallwoofl,  111  N.  C.  132,  15  S.  E.  1030.  See  Hall  v.  Red- 
son,  10  Mich.  21;  Winsted  Sav.  Bank  v.  Spencer,  26  Conn.  195. 

23  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 

24  Thompson  v.  Johnson,  84  Tex.  548,   19   S.  W.   784. 
2a  Biencourt  v.  Parker,  27  Tex.  562. 


§§  586,  587     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  23.8 

tary."^  A  de  facto  female  notary  may  take  acknowl- 
edgments.^'^ An  ojBScer  with  a  defective  commission  is 
a  de  facto  ofl&cer.^^  An  alien  officer  is  a  de  facto  offi- 
cer.^ Officer  pro  tempore  is.^**  Also  is  an  officer  re- 
moving to  another  state.^^  But  an  officer  under  an  un- 
recognized government  is  not.^^  Nor  an  officer  after 
the  exph-ation  of  his  term  of  office. ^^ 

§  586.  Ex-oflGicio  Officers. — The  acknowledgment  of  a 
deed  before  an  officer  of  another  state  who  is  ex-officio 
notary  public,  if  in  proper  form,  is  valid,  and,  it  seems, 
quite  as  ample  as  if  he  were  a  notary  by  direct  appoint- 
ment.^^ It  is  also  held  that  an  acknowledgment  before 
a  primary  judge  was  good  by  reason  of  his  being  ex- 
officio  notary  public,  although  the  statute  did  not  in 
terms  authorize  primary  judges  to  take  such  acknowl- 
edgments, and  the  officer  did  not  sign  as  notary  public.^^ 

§  587.  Deputies  may  Take  When.^^ — Where  an  officer 
has  the  authority  to  take  acknowledgments,  and  also 
the  authority  to  appoint  a  deputy  to  perform  his  duties, 

26  Biencourt  v.  Parker,  27  Tex.  562.  And  see  Thulemeyer  v. 
Jones,  37  Tex.  571;  Franco-Tex.  Land  Co.  v.  Laigle,  59  Tex.  344; 
Aulenier   v.   Governor^   1   Tex.   666. 

27  Third  Nat.  Bank  of  Chattanooga  v.  Smith,  Tenn.  Ch.  App.  1102; 
and  see  Davidson  v.  State,  135  Ind.  254,  34  N.  E.  972;  Brown  v. 
Lunt,  37  Me.  423;  Farmers'  Bank  v.  Chester,  6  Humph.  (Tenn.)  458, 
44  Am.  Dec.  318;  Bullene  v.  Garrison,  1  Wash.  Ter.  587. 

28  Hamilton  v.  Pitcher,  53  Mo.   334. 

29  Wilson  V.  Kimmel,  109  Mo.  260,  19  S.  W.  24. 

30  Woodruff  V.  McHarry,  56  HI.  "218.  See  Cocke  v.  Halsey,  16 
Pet.    (U.   S.)    71,    10   L.    ed.    891. 

31  Prescott   V.   Hayes,   42   N.   H.   56. 

32  Simpson  v.  Lovering,  3  Bush   (Ky.),  458,  96  Am.  Dec.  252. 

33  McKellar  v.  Peck,  39  Tex.  381;  Bernier  v.  Becker,  37  Ohio  St. 
72;  Parker  v.  Wood,  Dall.  (Pa.)  436,  1  L.  ed.  312;  New  Hampshire 
Land  Co.  v.  Tilton,  19  Fed.  73.  After  resignation,  see  Macey  v. 
Stark,  116  Mo.  481,  21  S.  W.  1094.  After  abolition  of  office,  see 
Goodykoontz  v.  Olsen,  54  Iowa,  174,  6  N.  W.  263. 

34  Wilson  V.  Simpson,  68  Tex.  312,  4  S.  W.  839. 

35  Butler  V.  Dunagun,  19  Tex.  559;  Harvey  v.  Hill,  7  Tex,  592. 

36  See   title,   "Who   may    Make   Acknowledgments." 


239  WHO  MAY  TAKE  ACKXOWLEDGMENTS.     §§  588-590 

an  acknowledgment  taken  by  such  a  deputy  would  be 
valid,  even  though  he  should  sign  as  special  deputy  and 
his  appointment  was  irregular,  and  he  was  only  a  de 
facto  officer.^'  And  a  certificate  of  acknowledgment  of 
a  married  woman  made  by  an  officer  styling  himself 
special  deputy  county  clerk  was  held  to  be  valid,  as 
deputy  county  clerks  were  authorized;  the  addition  of 
the  word  "special"  would  not  vitiate  it.^*  A  notary 
cannot  delegate  his  authority  to  a  deputy. 


39 


§  588.  Deputy  County  Clerks. — Under  the  act  of  Decem- 
ber 21,  1837,  clerks  of  the  county  and  district  courts 
were  authorized  to  appoint  deputies  to  discharge  the 
duties  of  their  offices;  and  taking  proof  of  instruments 
for  record  being  one  of  the  duties  of  the  county  clerk, 
his  deputy  had  authority  to  perform  it.^® 

§  589.  Deputies  and  "Pro  Tern"— County  Clerks. — The 
act  of  March  16,  1818  (taking  effect  August  7,  1818),^^ 
also  provided  for  deputy  county  clerks,  and  also  for  ap- 
pointment of  clerks  pro  tem.  by  the  chief  justice  of  the 
county  court  for  a  term  of  not  more  than  thirty  days. 

§  590.  Deputy  District  Clerks. — By  the  act  of  August  8, 
1870,  district  clerks  and  their  deputies  were  authorized 
to  take  acknowledgments.  It  is  held  that  under  this 
act  it  would  be  proper  for  a  deputy  clerk  to  certify  to 
acknowledgments  in  his  own  name  or  official  title.*^ 
This  act  was  not  repealed  by  the  act  of  May  6,  1871.*^ 

37   Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 
.38   Chicago  etc.  Ey.   Co.   v.  Titterington,   84  Tex.- 219,   31   Am.   St. 
Eep.  39,  19  S.  W.  472. 

39  Locke  V.  Huling,  24  Tex.  313.     See  post,  §  588. 

40  Kose  V.  Newman,  26  Tex.  135,  80  Am.  Dec.  646;  Cook  v.  Knott, 
28  Tex.  90;  Frizzell  v.  Johnson,  30  Tex.  32. 

41  3   L.   T.   117. 

42  Herndon  v.  Eeed,  82  Tex.  .560,  18  S.  W.  665. 

43  Herndon  v.  Eeed,  82  Tex.  560,  18  S.  W.  665,  and  Ballard  v. 
Carmichael,  83  Tex.  356,  18  S.  W.  734. 


§§  591-594     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  240 

§  591.  Deputy  Justices  of  the  Peace. — The  act  of  August 
13,  1870,  provided  that  justices  of  the  peace  should  be 
commissioned  notaries  public,  and  authorized  them  to 
take  acknowledgments  and  to  appoint  deputies  to  act 
as  notaries,  etc.^*  This  act  took  effect  from  passage, 
and  was  repealed  by  the  act  of  May  31,  1871.*® 

§  592.  Deputy  District  Clerks. — By  the  act  of  May  6, 
1871,^***  district  clerks  were  again  authorized  to  take  ac- 
knowledgments. And  it  is  held  that  deputies  were  au- 
thorized to  perform  all  such  official  acts  as  may  be  done 
by  his  principal.*''  Also  the  acts  of  December  20, 
1836,**  May  13,  1846,*^  February  9,  1856,^^  January  14, 
1862,^^  and  May  25,  1876,^^  authorized  deputies. 

§  593.  Presumptions. — It  is  generally  held  that  one 
who  acts  as  deputy  is  presumed  to  be  so  authorized  by 
law  and  his  principal.^^  And  that  where  the  princi- 
pal's name  is  signed  by  deputy,  the  presumption  is  that 
the  acknowledgment  was  made  before  the  principal,  and 
that  the  deputy  only  wrote  the  name  and  certificate.^* 
And  where  P.  acted  as  primary  judge  in  1835,  it  raises 
the  presumption  of  his  authority. ^^ 

§  594.  Judicial  Knowledge  of  Authority  of  Officers. — It 
should  be  judicially  known  what  persons  held  the  offices 

44  6   L.   T.   278. 

45  6  L.  T.  1038. 

46  Kev.  Stats.   1895,  art.  4613. 

47  Wert  V.   Schneider   &   Davis,   64   Tex.   330,   and   supra. 

48  Post,    §    947. 

49  Post,   §  959. 

50  Post,  §  965. 

51  Post,  §   969. 

52  Post,  §   978. 

53  Hope  V.  Sawyer,  14  111.  254;  Piper  v.  Chippewa  Iron  Co.,  51 
Minn.  495,  599,  53  N.  W.  870;  Small  v.  Field,  102  Mo.  104,  14  S.  W. 
815;  Summer  v.  Mitchell,  29  Fla.  179,  30  Am.  St.  Eep.  106,  10  South. 
562,  14  L.  R.  A.  815,  and  Coltrane  v.  Lamb,  109  N.  C.  209,  13  S.  E. 
784;  Suddereth  v.  Smyth,  13  Ired.  (N.  C.)  452;  Ament  v.  Brennan, 
1  Tenn.   Ch.  431. 

54  Abrams  v.  Ervin,  9  Iowa,  87. 

55  McKissick  v.  Colquhoun,  18  Tex.  151.     See  ante,  §   114. 


241  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  §  595 

of  primary  and  secondary  judges  under  the  former  gov- 
ernment ;  also  a  notorious  historical  fact  should  be  taken 
cognizance  of  by  the  courts  without  proof. 


56 


§  595.  Extraterritorial  Authority. — An  officer  may  prop- 
erly take  acknowledgments  of  deeds  to  property  lo- 
cated without  his  jurisdiction,  provided  he  acts  within 
his  jurisdiction.^''  It  is  held  that  a  record  would  not 
be  rendered  invalid  as  notice  by  showing  that  the  deed 
was  acknowledged  before  a  notary  outside  of  his 
county. ^^  But  other  states  sometimes  hold  that  the  ac- 
knowledgments must  be  by  an  officer  of  the  county  where 
the  land  is  located.  A  transfer  of  land  by  act  of  sale 
before  a  notary  beyond  the  limits  of  Texas  has  long 
been  recognized  by  this  court  as  valid  and  binding,  and 
a  duly  certified  copy  of  the  notary's  record  admissible  to 
prove  such  sale.®^ 

56  McCarthy  v.  Johnson,  20  Tex.  Civ.  App.  184,  49  S.  W.  1100; 
Smith   V.   Townsend,   Dall.    572. 

57  Beaumont  Pasture  Co.  v.  Preston  &  Smith,  65  '  Tex.  456. 

58  Peterson  v.  Lowry,  48   Tex.  408. 

59  Williams  v.  Conger,  49  Tex.  600;  Watrous  v.  McGrew,  16  Tex. 
512;  post,  §  773.  For  authority  of  different  officers,  see  post,  chap- 
ters 18-27,  where  it  will  be  seen  that  in  some  cases  the  officers  could 
not  act  where  the  land  was  without  their  counties.  Officers  gener- 
ally, see  Livingston  v.  Kettelle,  41  Am.  Dec.  169. 

16 


LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.         242 


CHAPTER  XVII. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS  AND  PROOF  WITHIN 
THE  STATE,  CONTINUED— THE  VARIOUS  LAWS  CON- 
CERNING THE  AUTHORITY  OF  OFFICERS  SINCE  AC- 
KNOWLEDGMENTS WERE  REQUIRED  DECEMBER  20,  1836. 

§  596.     Composition  of  courts  in  1836— Judges  remain  in  office. 

§  597.     Act  of  December  20,   1836— County  court. 

§  598.  Chief   justices   ex-officio    notaries. 

§  599.  Clerks    authorized    to    take    acknowledgments   and 

proof. 
§  600.  Clerk  "pro  tem'^  authorized. 

§  601.  Proof   by   witnesses   before   county   clerk   or   judge. 

§  602.  '  Notes  on  above  act. 

§  603.     Act   of   June   12,   1837 — Associate   justices. 
§  604.     Act   of  November  16,   1837— Notaries. 
§  605.     Act   of   December   21,   1837— Deputies. 
§  606.  Note. 

§  607.     Act  of  May  15,  1838— Notaries. 
§  608.     Act  of  January  19,   1839— Duties  of  recorder. 
§  609.  Note. 

§  610.     Act  of  January  26,  1839 — Chief  justices  of  county  court. 
§  611.     Act  of  February  5,  1840— Deeds  to  be  by  writing,  sealed 
and   delivered,   and   acknowledged   or   proved   by   two 
witnesses  before  the  county  court. 
§  612.  When  constructive  notice. 

§  613.  Clerks  authorized  to  record  on  acknowledgment  or 

proof,  or  on  certificate  of  a  district  judge,  chief 
justice  or  notary. 
§  614.  Acknowledgment  before  two  justices  of  the  peace. 

§  615.  Notes  on  above  act. 

§  616.     Act  of  January  22,  1841  — Associate  justices. 
§  617.     Act  of  February  3,  1841 — Acknowledgments  of  married 

women. 
§  618.  Notes. 

§  619,     Act  of  February  5,  1841— Validates. 
§  620.  Idem— Deeds  thereafter  to  be  recorded. 

§  621.  Note. 

§  622.  1.  Did  not  revoke    authority    of    officer    previously 

authorized— Repeal  by  implication. 
§  623.  Idem— Revising  prior  statute. 

§  624.  Idem— Where  latter  is  clearly  intended  as  sub- 

stitute for  former. 


243         LAWS  CONCEENING  AUTHORITY  OF  OFFICERS. 

§  625.  Idem— Statutes   relating  to   same   subject   mat- 

ter. 
§  626.  2.  Effect  on  authority  of  officers  previously  author- 

ized to  take  wife's  acknowledgment. 
§  627.  3.  Authorized    additional    officers. 

§  628.  Idem— Statutes   should    he    construed    so   that 

both   may  stand. 
§  629.  Idem — Where   both     may    stand     parties     have 

their  election  of  remedies. 
§  630.  Idem— Cases  not  decisive. 

§  631.  Authority  revoked  when. 

§  632.     Act  of  January  3,  1842— Associate  justices. 
§  633.     Act   of  January  10,  1845— Notaries. 
§  634.  Construction  of  above  statute. 

§  634a.  Constitution  of  July  4,  1845— Laws  continued  in  force. 
§  635.     Act  of  April  29,  1846— Separate  property  of  wife. 
§  636.  Note. 

§  637.     Act  of  April    30,    1846— Acknowledgments    of    married 

women  within  the  state. 
§  638.  Acknowledgments   of   married   women    without    the 

state. 
§  639.  •  Law  applies  to  what  property. 

§  640.  Former  laws  repealed. 

§  641.  Effect    of    above    law. 

§  641a.  Effect  on  prior  acts. 

§  642.     Act  of  May  2,  1846— Chief  justices  to  hold  over. 
§  643.     Act  of  May   13,  1846— Notaries. 
§  644.     Act  of  May  12,  1846— Officers  authorized. 
§  645.  Prior  laws  repealed. 

§  646.  Effect  of  this  act— First,  as  to  its  revocation  of  the 

authority  of  officers  previously  authorized  to  take 
acknowledgments    of    all    persons    except    married 
women. 
§§  647-651.  Second,  as  to  its  revocation  of  the  authority  of  offi- 

cers previously    authorized    to  take    acknowledg- 
ments of  married  women. 
§  648.  Idem— Acts    of    April  30,   1846,   and    May    12, 

1846,   should   be   construed   together. 
§  649.  Idem — Acts  passed  by  same  legislature. 

§  650.  Idem— General  and  special  laws  construed. 

§  651.  Idem— Act   of   April   30,   1846,   prescribed   only 

mode  for  married  women. 
§  652.  Third,  may  officers  named  in  act  of  May  12,  1846, 

take  wife's  acknowledgment? 
§  653.  Idem — Acts  passed  at  different  legislatures. 

§  654.  Idem— Statutes  construed  together. 

§  655.  Idem— Act  of  April  30,  1846,  not  intended  to 

name   only  officers  to  be  authorized. 


LAWS  CONCERNINa  AUTHOEITY  OF  OFFICEES.         244 

§  656.  Idem — Proper    construction    of    above    act. 

§  657.  Act  of  May  13,  1846— An  act  organizing  county  courts. 

§  658.  Deputy   clerk. 

§  659.  Seal. 

§  660.  Two    county    commissioners    to    act    in    absence    of 

chief  justice. 

§  661.  Laws  repealed. 

§  662.  Effect  of  above  act. 

§  663.  Idem — Eepealed  by  implication. 

§  664.  Idem— Statute      revising      subject     matter     of 

former. 

§  665.  Statute  intended  as  substitute  for  former. 

§  666.  A  law  shall  embrace  but  one  subject  matter. 

§  667.  Deputies. 

§  668.  Act  of  March  16,  1848— Deputy  county  clerks. 

§  669.  Act   of   March   16,   1848— County   courts. 

§  670.  Deputy  county  clerk. 

§  671.  "Clerk  pro  tern." 

§  672.  Two  county  commissioners  to  act. 

§  673.  Certificates. 

§  674.  Chief    justices    take    acknowledgments    of    married 

women. 

§  675.  Effect   of  above  act. 

§  676.  Its  constitutionality. 

§  677.  Object  of  act  must  be  single. 

§  678.  Are  chief  justices  authorized  to  take  acknowl- 
edgments  of  married  women? 

§  679.  Authority  as  ex-officio  notary. 

§  680.  Were  clerks  "pro  tem"  authorized? 

§  681.  Act   of   December  18,   1849 — County  clerks  to   take   ac- 
knowledgments. 

§  682.  Act    of    December    29,    1849— County    commissioners    to 

perform  duties  of  chief  justice. 

§  683.  Act  of  February  9,  1856— Deputy  clerks. 

§  684.  Act  of  February  9,  1860— Validates. 

§  685.  Authenticated  as  above,  and  afterward  recorded. 

§  686.  Act  of  April  6,  1861— Officers  authorized. 

§  687.  Effect   of   above   act. 

§  688.  Act  of  January  14,  1862— Officers  authorized — Validates. 

§  689.  Constitution   of   1866— County  court   provided  for. 

§  690.  Act  of  October  25,  1866 — County  courts  provided. 

§  691.  Act  of  November  13,  1866— Officers  authorized. 

5  692.  Validity    of    above    act— Amendment    of    repealed 

statute. 

§  693.  Constitution  of   1869— District  and  county  clerks. 

§  694.  Idem — Justices    of    the   peace    commissioned   notaries. 

S  695.  Act  of  August  8,  1870— Officers  authorized. 

§  696.  Not    repealed. 


245         LAWS  CONCEENTNG-  AUTHOEITY  OF  OFFICEES.      §  596 

§  697.     Act   of  August   13,   1870 — "An   act  to   organize  justice 

courts    and    county    courts." 
§  698.  Deputy  justices  of  the  peace  authorized. 

§  699.  County  court. 

§  700.  Eepealed,   when. 

§  701.     Act   of  August   13,   1870 — "An  act  to   validate  certain 

official   acts   of   county  judges." 
§  702.     Validates. 

§  703.     Act  of  May  6,  1871— Officers  authorized. 
§  704.     Act  of  May  31,  1871— Eepeals  authority  of  deputy  jus- 
tices of  peace. 
§  705.     Act  of  April  14,  1874 — Validates  acts  of  district  clerks. 
§  706.     Act  of  April  20,  1874— District  clerks. 
§  707.     Act   of  May  2,   1874— Validates   acts   of   notaries. 
§  708.     Constitution  of  1875 — County  courts. 
§  709.  Justices  of  the  peace. 

§  710.     Act   of   May   25,   1876— County   clerks. 
§  711.  Idem. 

§  712.     Act  of  June   16,  1876— County  courts. 
§  713.     Act  of  August  17,  1876 — Justices  of  peace. 
§  714.     Eevised  Statutes  of  1879— Justices  ex-officio  notaries. 
§  715.     Eevised  Statutes  of  1895 — Justices  ex-officio  notaries. 
§  716.     Eevised   Statutes   of   1895 — Officers  authorized   to    take 

acknowledgments,  etc. 
§  717.  Effect   of   above   statute. 

For  the  laws  prior  to  1836,  see  chapter  1,  §§  3  (a), 

5-21. 
For  acknowledgments  taken  without  the  state,  see 

chapters  14,  18,  19. 
For  the   various   officers   considered   separately,   see 

chapters  20-28. 
For  validating  statutes,  see  chapter  28. 

§  596.  Composition  of  Courts  in  1836 — Judges  Remain  in 
Office.— Under  the  constitution  of  March  17,  183G,  ar- 
ticle 4,  section  7,^  the  supreme  court  shall  consist  of  a 
chief  justice  and  associate  judges;  the  district  judges 
shall  compose  the  associate  judges,  a  majority  of  whom, 
with  the  chief  justice,  shall  constitute  a  quorum.  And 
section  8  of  the  schedule  of  same  provided  that  all 
judges,  etc.,  shall  remain  in  office  in  discharge  of  the 
powers  and  duties  of  their  respective  offices  until  there 
shall  be  others  appointed  or  elected  under  the  consti- 

1   1    L.    T.    1074. 


§§597,598   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    246 

tiition.^  This  constitution  remained  in  force  until  the 
constitution  of  July  4,  1845,  was  ratified  August  27, 
1845.^ 

§  597.  Act  of  December  20,  18364— County  Court.— "An 
act  organizing  the  inferior  courts,  and  defining  the 
powers  and  jurisdiction  of  the  same"  (^ taking  effect  from 
passage).  Section  1  provides  that  the  county  court 
shall  be  composed  ot  one  chief  justice,  who  shall  be 
elected  by  joint  ballot  of  both  houses  of  Congress  and 
two  associate  justices,  who  shall  be  selected  by  a  ma- 
jority of  the  justices  of  the  peace  of  each  county  from 
among  their  own  body  at  the  beginning  of  each  and 
every  year. 

§  598.  Chief  Justices  Ex-officio  Notaries. — Section  34^ 
provides  that  the  chief  justices  of  the  several  county 
courts  shall  be  ex-oflflcio  notaries  public  for  their  re- 
spective counties;  they  shall  have  power  to  administer 
oaths  and  affirmations  in  all  matters  relating  to  their 
notarial  office;  shall  have  power  to  receive  proof  or  ac- 
knowledgments of  all  instruments  of  writing  relating 
to  commerce  or  navigation,  and  also  to  make  declara- 
tions and  testify  to  the  truth  thereof,  under  the  seal 
of  office,  concerning  all  matters  done  by  them  in  virtue 
of  their  offices;  they  shall  keep  a  register  of  all  official 
acts  done  by  virtue  of  their  offices,  and,  when  required, 
shall  give  a  certified  copy  of  any  record  of  their  offices 
to  anyone  applying  for  the  same;  and  for  all  acts  done 
by  them,  as  notary,  they  shall  receive  such  fees  as  may 
be  provided  by  law;  the  seal  of  the  county  court  shall 
be  the  notarial  seal;  and  shall  be  fixed  to  all  instru- 
ments and  attestations  of  the  respective  notaries. 

2  See  chapter  1. 

3  2  L.  T.  1301. 

4  1  L.  T.  1215. 

5  H.  D.  2588;  P.  D.  4678. 


247    LAWS  CONCEKNING  AUTHOEITY  OF  OFFICERS.     §§  599-601 

§  599.  Clerks  Authorized  to  Take  Acknowledgments  and 
Proof. — Section  35®  provides  that  the  clerks  of  the 
county  courts  shall  be  the  recorders  for  their  respective 
counties,  and  it  shall  be  their  duty  to  record  all  deeds, 
conveyances,  mortgages,  and  other  liens,  and  all  other 
instruments  of  writing  required  by  law  to  be  recorded 
in  their  offices,  which  are  presented  to  them:  Provided, 
one  of  the  witnesses,  of  the  number  required  by  law, 
shall  swear  to  the  signature  of  the  signer,  or  he  himself 
shall  acknowledge  the  same;  w^hich  shall  be  certified 
by  the  recorder,  form  part  of  the  record ;  and  all  deeds, 
conveyances,  mortgages  and  other  liens  shall  be  re- 
corded in  the  county  where  the  property  is  situated. 

§  600.  Clerks  "Pro  Tern"  Authorized.— Section  G''  pro- 
vides that  in  case  of  a  vacancy  in  the  office  of  clerk  of 
the  county  court,  or  during  the  unavoidable  absence  of 
such  clerk,  the  court  in  term  time,  and  the  chief  jus- 
tices thereto  in  vacation,  may  appoint  a  clerk  pro  tem, 
who  shall  discharge  the  same  duties  and  have  the  same 
authority  as  a  regularly  elected  clerk. 

§  601.  Proof  by  Witnesses  Before  County  Clerk  or  Judge. 
Section  58^  provides  that  all  titles,  liens,  mortgages  or 
other  color  of  title,  before  they  can  be  admitted  upon 
record,  must  be  proven  by  at  least  two  subscribing  wit- 
nesses^ if  living  in  the  county,  and  if  not  so  living  in 
the  county,  then  the  handivritvng  shall  be  proven  either 
before  some  county  judge,  or  before  the  clerk  of  the 
county  court  in  whose  office  such  record  is  proposed 
to  be  made;  and  in  all  cases  the  certificate  of  any  county 
judge,  that  the  witness  appeared  before  him  and  ac- 
knowledged his  signature,  or  that  the  handwriting  of 
the  same  w^as  duly  proven,  shall  be  sufficient  evidence 
to  authorize  the  clerk  of  the  county  court  to  enter  such 
title,  lien,  mortgage  or  other  color  of  title  upon  record ; 

6  H.  D.  2752;  P.  D.  4973. 

7  H.  D.  2.38. 

8  P.  D.  4982;  H.  D.  2755. 


§§  602,  603   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    248 

and  said  clerk  for  recording  the  same  shall  be  entitled 
to  charge  and  receive  the  sum  of  twenty-five  cents  for 
every  hundred  words. 

§  602.  Notes  on  Above  Act. — This  act  authorized  chief 
justices  of  the  county  court  to  take  acknowledgments 
and  proof  of  instruments  to  be  recorded  anywhere ;  and 
county  clerks  and  pro  tem  county  clerks  of  instruments 
to  be  recorded  in  their  offices.*^  And  county  judges 
were  authorized  to  take  proof  of  instruments  by  sub- 
scribing witnesses  to  be  recorded  anywhere,  and  county 
clerks  of  such  instruments  to  be  recorded  within  their 
own  counties.*^  It  is  not  clear  whether  or  not  asso- 
ciate justices  of  the  county  court  were  authorized  to 
act.^^  No  other  officers  were  authorized.  Acknowl- 
edgments of  single  and  married  persons  were  taken 
alike  until  the  adoption  of  the  common  law  March  16, 
1840.^^  Thereafter  there  was  no  provision  made  for 
married  women's  acknowledgments,  until  after  Febru- 
ary 3,  1841.*^  There  was  no  change  as  to  authorized 
officers  until  the  act  of  June  12,  1837,  which  provided 
for  acknowledgments  and  proof  by  associate  justices 
of  the  county  court,  in  certain  cases.  Other  acts  fol- 
lowing authorized  additional  officers.  The  authority 
of  none  of  the  above  officers  was  revoked  until  the  act 
of  January  19,  1839,  took  effect. 


14 


§  603.  Act  of  June  12,  1837^^ — Associate  Justices. — "An 
act  to  authorize  justices  of  county  courts  to  act  as 
judges  of  probate  and  notaries  public  in  certain  cases 
[taking  effect  from  passage].     Be  it  enacted  by  the  Sen- 

9  §§  34  and  35. 

10  §  38. 

11  See  post,  §  857,  and  1  L.  T.  1208. 

12  2  L.  T.  797. 

13  Post,  §  617. 

14  Post,  §§  608,  609.  As  to  when  the  above  act  was  repealed,  sew 
post,  §§  662-666,  and  ante,  §  222. 

16  1   L..   T.   1333;   H.   D.   2589. 


249   LAWS  CONCEENING  AUTHOKITY  OF  OFFICERS.    §§  604,  605 

ate  and  House  of  Representatives  of  the  republic  of 
Texas,  in  Congress  assembled,  that  in  cases  in  which  the 
chief  justices  of  the  county  courts  may  be  interested,  and 
in  case  of  the  absence  or  inability  of  the  chief  justices  to 
act,  the  associate  justices  of  the  county  court  shall  be 
authorized  to  act  as  judges  of  probate;  and  either  of 
the  said  associate  justices  may  act  as  notary  public  in 
such  cases  and  during  such  period."  There  was  no  fur- 
ther addition  or  change  as  to  authorized  ofificers  until 
November  16,  1837,  when  notaries  were  provided  for. 

§  604.  Act  of  November  16,  ISST^''— Notaries.— "An  act 
to  provide  for  the  appointment  of  notaries  public  [tak- 
ing effect  from  passage].  Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  Republic  of  Texas, 
in  Congress  assembled,  that  there  shall  be  a  notary  pub- 
lic for  each  of  the  ports  of  entry  of  this  republic,  to  be 
appointed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate ;  who  shall  hold  his  office  for  two 
years,  unless  sooner  removed  by  the  President,  and 
shall  receive  the  same  fees  as  are  now  allowed  by  law  to 
the  several  chief  justices  for  the  performance  of  notarial 
acts."     It  does  not  state  what  are  notarial  acts. 

Note. — The  next  addition  to  authorized  officers  was 
December  31,  1837,  authorizing  deputy  county  clerks. 

§  605.  Act  of  December  21,  IBS?**— Deputies.— "An  act 
to  authorize  the  clerks  of  the  several  courts  to  appoint 
deputies  and  requiring  them  to  keep  their  offices  at  the 
county  seat.  Section  1.  Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  republic  of  Texas, 
in  Congress  assembled,  that  the  clerks  of  the  several 
county  and  district  courts  of  this  republic  be  author- 
ized to  appoint  a  deputy,  to  whom  they  shall  administer 
an  oath,  faithfully  to  discharge  the  duties  of  their  of- 
fice, and  they  shall  in  all  cases  be  responsible  for  the 
conduct  of  their  deputies." 

17  1  L.  T.  3358;  H.  D.  2590. 

18  1  L.  T.  1453. 


§§  606-608    LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    250 

§  606.  Note. — Under  this  act  deputies  would  have  au- 
thority to  take  acknowledgments  under  the  same  condi- 
tions that  their  principals  would  have. 


19 


§  607.  Act  of  May  15,  ISSS^O— Notaries.— "An  act  au- 
thorizing the  President  to  appoint  notaries  public  [tak- 
ing effect  from  passage].  Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  republic  of  Texas, 
in  Congress  assembled,  that  there  shall  be  appointed 
for  the  county  where  the  seat  of  government  is  or  shall 
be  located,  two  notaries  public  in  addition  to  the  chief 
justice  of  said  county;  and  also  one  additional  notary 
in  each  countj^  of  the  republic;  which  appointments 
shall  be  made  by  the  President,  by  and  with  the  advice 
and  consent,  of  the  Senate." 

§  608.  Act  of  January  19,  1839^^ — Duties  of  Recorders. — 
"An  act,  the  better  to  define  the  duties  of  recorders 
[took  effect  from  passage].  It  shall  be  the  duty  of  the 
clerks  of  the  county  courts  to  record  all  deeds,  convey- 
ances, mortgages  and  other  liens,  affecting  the  titles  to 
land  and  immovable  property,  situated  within  the  same, 
which  shall  be  presented  to  them  for  record;  provided 
one  of  the  siihscribing  loitnesses  shall  swear  to  the  sig- 
nature of  the  signer,  or  he  himself  shall  acknowledge 
the  same ;  which  proof  or  acknowledgment  shall  be  made 
either  before  some  county  court,  or  chief  justice  of  the 
same,  or  before  the  clerk  in  whose  office  such  instrument 
is  proposed  to  be  recorded,  a  certificate  of  which  shall 
be  made  upon  such  instrument  by  the  proper  officer  and 
become  a  part  of  the  record.  And  all  laws  contrary 
to  or  conflicting  with  this  act  be,  and  the  same  are 
hereby  repealed,  so  far  as  they  conflict  with  or  are  con- 
trary to  the  same." 

19  Rose  V.  Newman,  26  Tex.  135,  80  Am.  Dec.  646;  Cook  v.  Knott, 
28  Tex.  90;  Frizzell  v.  Johnson,  30  Tex.  32;  Chicago  etc.  Ry.  Co. 
V.  Titterington,  84  Tex.  219,  31  Am.  St.  Rep.  39,  19  S.  W.  472;  ante, 
§   587. 

20  1  L.  T.  1480;  H.  D.  2592. 

21  2  L.  T.  52;  P.  D.  4974;   H.   D.  2760. 


251    LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.    §§  609-611 

§  609.  Note.— After  this  act  went  into  effect  only  the 
county  court,  or  chief  justice  of  same,  or  county  clerks 
in  whose  office  the  instrument  was  to  be  recorded,  were 
authorized  to  take  acknowledgments  and  proof.^^  This 
act  remained  in  force  until  the  act  of  February  5,  1840, 
took  effect.2^ 

§  610.  Act  of  January  26,  18392*— Chief  justices  of  County 
Court.— "An  act  entitled  'an  act  to  repeal  certain  parts  of 
an  act  organizing  the  inferior  courts,  and  defining 
the  powers  and  jurisdiction  of  she  same.'  Section  1. 
Be  it  enacted  by  the  Senate  and  House  of  Kepresenta- 
tives  of  the  republic  of  Texas  in  Congress  assembled, 
that  the  sixth  section  of  the  aforesaid  act  be,  and  the 
same  is  hereby  repealed,  and  that  from  and  after  the 
passage  of  this  act,  the  chief  justices  of  the  respective 
counties  of  this  republic  shall  sit  and  exercise  the  pow- 
ers of  probate  judges,  conservators  of  the  peace,  com- 
missioners of  roads  and  revenues,  and  notaries  puhlicy 
This  repeals  section  6  of  act  of  December  20,  1836.^^ 
While  it  authorized  chief  justices  of  the  county  courts 
to  exercise  "the  powers  of  notaries  public,"  it  seems 
that  at  this  time  they  would  not  include  the  taking  of 
acknowledgments.^**  It  does  not,  however,  affect  the 
authority  to  take  acknowledgments  given  chief  justices 
of  the  county  courts  by  the  act  of  January  19,  1839.^'^ 


§  611.  Act  of  February  5,  184028— Deeds  to  be  by  Writ- 
ing, Sealed  and  Delivered,  and  Acknowledged  or  Proved  by 
Two  Witnesses  Before  the  County  Court. — "An  act  concern- 

22  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691;  Bryan  v. 
Sundberg,  5  Tex.  423;  Rogers  v.  Watrous,  8  Tex.  65,  58  Am.  Dec.  100; 
Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665;  post,  §§  622-625. 

23  Post,  §§  623,  624.  As  to  its  effect  on  authority  of  associate 
justices  of  county  court,  see  post,  §  855. 

24  2  L.  T.  91. 

25  See  1  L.  T.  1209. 

26  Ante,  §  609. 

27  As  to  the  repeal  of  the  act  of  .January  26,  1839,  see  post,  §  662. 

28  2  L.  T.  .327;  P.  D.  997;  H.  D.  2765. 


§  612      LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.         252 

ing  conveyances  [taking  effect  March  16,  1840].  Sec- 
tion 1.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  republic  of  Texas,  in  Congress  as- 
sembled, that  no  estate  of  inheritance  or  freehold,  or 
for  a  term  of  more  than  five  years,  in  lands  and  tene- 
ments, shall  be  conveyed  from  one  to  another,  unless 
the  conveyance  be  declared  by  writing,  sealed  and  de- 
livered; and  any  instrument  to  which  the  person  mak- 
ing the  same  shall  affix  a  scroll^  by  way  of  seal,  shall  be 
adjudged  and  holden  to  be  of  the  same  force  and  ob- 
ligation as  if  it  were  actually  sealed ;  provided,  the  per- 
son making  the  same  shall,  in  the  body  of  the  instru- 
ment^ recognize  such  scroll  as  having  been  fixed  by  way 
of  seal;  nor  shall  such  convey^ance  be  good  against  a 
purchaser  for  valuable  consideration,  not  having  notice 
thereof,  nor  any  creditor,  unless  the  same  writing  be 
acknowledged  by  the  party  or  parties  who  shall  have 
sealed  and  delivered  it,  or  proved  by  tivo  witnesses  to 
be  his,  or  their  act,  before  the  county  court  of  the  county 
in  which  the  land  conveyed,  or  some  part  thereof,  lieth ; 
or  in  the  manner  hereinafter  directed;  and  be  lodged 
with  the  clerk  of  the  county  court  to  be  recorded." 

§  612.     When     Constructive    Notice Section    2.^^     No 

covenant  or  agreement  made  in  consideration  of  mar- 
riage, shall  be  good  against  a  purchaser  for  a  valuable 
consideration,  having  notice  thereof,  or  any  creditor  un- 
less the  same  covenant  or  agreement  be  acknowledged 
by  the  party  to  be  bound  thereby,  or  proved  by  tivo  sub- 
scribing witnesses  to  be  his,  her  or  their  act — if  land 
be  charged,  before  the  court  of  the  county  in  which  the 
land,  or  part  thereof,  lieth — or  of  personal  estate  only 
be  settled,  or  covenanted  or  agreed  to  be  paid  or  settled, 
before  the  court  of  that  county  in  which  such  personal 
estate  shall  remain,  and  before  the  court  in  which  the 
married  parties  may  reside  (if  they  reside  in  another 
county),  or  in  the  manner  hereinafter  directed,  and  be 
lodged  with  the  clerk  of  the  county  court  in  which  such 

29  P.   D.   4987;   H.   D.   2766. 


253    LAWS  CONCEENING  AUTHORITY  OF  OFFICEES.    §§  613,614 

property  may  remain,  and  in  which  such  married  par- 
ties may  reside,  to  be  recorded;  and  all  the  provisions 
of  this  act  shall  be  complied  with,  notwithstanding  any- 
thing that  may  be  contained  in  the  eighth  section  of 
the  act  to  adopt  the  common  law,  etc.,  approved  Janu- 
ary 20,  1840." 

§  613.  Clerks  Authorized  to  Record  on  Acknowledgment 
or  Proof,  or  on  Certificate  of  a  District  Judge,  Chief  Justice  or 
Notary. — "^Section  o.^^  The  clerks  of  the  several  county 
courts  of  this  republic,  and  their  deputies  shall  be,  and 
they  are  hereby  authorized  and  required  to  admit  to 
record,  at  any  time,  in  any  form  required  by  this  act, 
any  conveyance,  either  on  the  acknowledgment  of  the 
party  or  parties,  or  the  proof  on  oath,  of  such  acknowl- 
edgment by  the  legal  number  of  witnesses  thereto  made, 
in  the  offices  of  the  respective  clerks;  or  upon  the  cer- 
tificate of  some  district  judge  or  chief  justice^  or  notary 
public  of  the  county,  with  the  seal  of  his  office  there- 
unto annexed,  that  such  acknowledgment  was  made,  or 
the  execution  of  the  instrument  proven,  as  required 
above;  and  any  conveyance  so  recorded,  shall  have  the 
same  legal  validitj^  in  all  respects  as  if  it  were  proven- 
in  open  court." 

§  614.  Acknowledgment  Before  Two  Justices  of  the  Peace. 
"Section  6.^^  Any  deed  may  in  like  manner  be  admit- 
ted to  record  upon  the  certificate,  under  seal,  of  any 
two  justices  of  the  peace  for  any  county  in  this  republic, 
annexed  to  such  deeds,  and  to  the  following  effect,  to 
wit: 

"  'Republic  of  Texas, 
County  of . 

"  'We,  A  B  and  C  D,  justices  of  the  peace,  in  the  coun-' 
ties  aforesaid,  do  hereby  certify  that  E  F,  a  party  (or 
E  G  or  G  M,  etc.,  parties)  to  a  certain  deed  bearing  date 

30  P.  D.  4975;  H.  D.  2768. 

31  P.  D.  4976;  H.  D.  2769. 


§§  615,  616   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    254 

on  the  — —  day  of ,  and  hereto  annexed,  per- 
sonally appeared  before  n,s,  m  our  county  aforesaid,  and 
aoknowledji'cd  the  same  to  be  his  (or  their)  act  or  deed, 
and  desired  us  to  certify  the  said  acknowledgment  to 

the  clerk  of  the  county  of  — • — ,  in  order  that  the 

said  deed  may  be  recorded. 

"  'Given  under  our  hands  and  seals  this  — • —  day  of 


"'A  B.       (L.  S.) 

"'C  D.        (L.  S.)'" 


§  615.  Note  on  Above  Act. — This  act  seems  to  limit  the 
authority  to  the  officers  named  therein,  as  it  provides 
that  no  conveyance  shall  be  good  against  an  innocent 
purchaser,  etc.,  unless  the  same  is  acknowledged  or 
proved  before  them.^^  The  officers  mentioned  therein 
(with  the  addition  of  associate  justices  of  the  county 
court  by  act  of  January  22,  1841),  were  authorized  to 
take  such  acknowledgments  and  proof,  at  least  until 
the  acts  of  February  3,  1841,  and  February  5,  1841,  and 
probably  until  the  acts  of  April  30,  1846,  and  May  12, 
1846.  (After  the  adoption  of  the  common  law,  March 
16,  1840,  married  women  could  not  convey  their  real 
property  until  February  3,  1841.)  It  still  limits  county 
clerks  to  instruments  to  be  recorded  in  their  own  coun- 
ties.    It  probably  repeals  the  act  of  January  19,  1839.^* 

§  616.  Act  of  January  22,  1841^* — Associate  Justices  of 
County  Court. — "Be  it  enacted  that  in  all  cases  in  which 
the  chief  justice  of  any  county  in  this  republic  shall  be 
interested,  absent  or  unable  to  perform  his  duties,  the 
associate  justice  of  the  county  court  shall  be  authorized 
and  empowered  to  act  in  his  stead.  Be  it  further  en- 
acted that  so  much  of  the  first  section  of  an  act  organiz- 
ing the  inferior  courts  and  defining  the  powers  and  ju- 
risdiction of  the  same  as  requires  the  associate  justices 

32  Post,  §   646. 

33  Post,  §§  623,  624. 

34  2  L.  T.  532;  H.  D.  272,  273. 


255         LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.       §  617 

of  the  county  courts  to  be  selected  at  the  beginning  of 
each  and  every  year  be,  and  the  same  is  hereby  re- 
pealed." 

§  617.  Act  of  February  3,  1841^^ — Acknowledgments  of 
Married  Women. — "An  act  prescribing  the  mode  in  which 
married  persons  may  dispose  of  their  separate  property 
[took  effect  from  passage].  Be  it  enacted  by  the  Senate 
and  House  of  Eepresentatives  of  the  republic  of  Texas, 
in  Congress  assembled,  that  from  and  after  the  passage 
or  approval  of  this  act,  when  a  husband  and  his  wife 
have  sealed  and  delivered  a  writing  purporting  to  be  a 
conveyance  of  any  estate  or  interest  in  any  land,  slave 
or  slaves,  or  other  effects,  the  separate  property  of  the 
wife,  if  she  appear  before  any  judge  of  the  district  courts 
or  chief  justice  of  the  county  court,  and  being  examined 
privily  and  apart  from  her  husband,  shall  declare  that 
she  did  freely  and  willingly  seal  and  deliver  the  said 
writing  (to  be  then  shown  and  explained  to  her),  and 
wishes  not  to  retract  it,  and  shall  acknowledge  the  said 
writing  so  again  shown  to  her,  to  be  her  act ;  such  privy 
examination,  acknow^ledgment  and  declaration  the  said 
judge  or  chief  justice  shall  certify  under  his  hand  and 
seal  by  a  certificate  annexed  to  said  writing,  and  to  the 
following  effect,  or  substance  thereof,  that  is  to  say : 

"  'Kepublic  of  Texas, 
County  of , 

"  'I,  A  B,  chief  justice  of  the  county  aforesaid,  do 
hereby  certify,  that  E  F,  the  wife  of  G  H,  parties  to  a 

certain  deed,  bearing  date  on  the day  of , 

and  hereunto  annexed,  personally  appeared  before  me, 
the  chief  justice  of  the  county  aforesaid,  and  having 
been  examined  by  me  privily  and  apart  from  her  hus- 
band, and  having  the  deed  aforesaid  fully  explained  to 
her,  she,  the  said  E  F,  acknowledged  the  same  to  be 
her  act  and  deed,  and  declared  that  she  had  willingly 

35  2  L.  T.   608;   H.  D.   173. 


§§  618,  619   LAWS  CONCEENING  AUTHOEITY  OF  OFFICERS.   256 

signed,  sealed  and  delivered    the  same,  and    that   she 
wished  not  to  retract  it. 

"  ^Given  under  my  hand  and  seal,  this  day  of 


"'(Seal.)' 

''But  any  certificate  showing  that  the  requisition^  of 
the  law  have  been  complied  with,  shall  be  as  valid  as 
the  form  here  prescribed;  and  such  conveyance  shall 
pass  all  the  right,  title,  and  interest,  which  the  husband 
and  wife,  or  either  of  them,  may  have  in  or  to  the  prop- 
erty therein  conveyed." 

§  618.  Note. — At  this  time  district  judges  were  also 
the  associate  justices  of  the  supreme  court.^^  This  act 
did  not  affect  the  authority  of  oflftcers  as  to  any  ac- 
knowledgments except  those  of  married  women.  It 
provided  the  only  means  in  which  a  married  woman 
can  convey  her  real  estate.^'' 

§  619.  Act  of  February  5,  1841^^— Validates.— "An  act 
of  limitations  [took  effect  from  passage].  Section  20. 
Any  grant,  deed  or  instrument  for  the  reconveyance  of 
real  estate,  or  personal,  or  both,  or  for  the  settlement 
thereof  in  marriage,  or  separate  property  or  conveyance 
of  the  same  in  mortgage,  on  trust  to  uses,  or  on  condi- 
tions, as  well  as  any  and  every  other  deed  or  instrument 
required,  or  permitted  by  law  to  be  registered,  and 
which  shall  have  been  therefore  registered,  shall,  from 
the  passage  of  this  act,  be  held  to  have  been  duly  regis- 
tered, with  the  full  effects  and  consequences  of  the  ex- 
isting laws :  Provided,  the  same  shall  have  been  acknowl- 
edged by  the  grantor  or  grantors,  maker  or  makers,  be- 
fore any  chief  justice  of  the  county  court,  or  before  any 
notary  public,  or  before  the  clerk  of  the  county  court 
in  whose  office  such  record  is  proposed  to  be  made,  or 
proved  before  such  officer  by  one  or  more  of  the  suh- 

86  Con3t.  1836,  art.  4,  §  7;  ante,  §  596;  1  L.  T.  1074. 

37  Post,   §    641;    Cole   v.   Bammell,   62   Tex.   111. 

38  2  L.  T.  633;  P.  D.  4977;  H.  D.  2776. 


257         LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.       §  620 

scribing  witnesses,  and  certified  by  such  officer;  any 
obscurity  or  conflict  in  the  existing  laws  to  the  contrary 
notwithstanding." 

§  620.  Idem — Deeds  Thereafter  to  be  Recorded. — "Sec- 
tion 21.^^  Every  grant,  deed  or  instrument  mentioned 
in  the  twentieth  section  of  this  act,  hereafter  to  be  made 
and  recorded,  shall  be  duly  registered  in  the  office  of  the 
proper  county,  upon  the  acknowledgment  of  the  parties 
or  party  signing  the  same  before  the  register,  or  clerk 
of  the  county  court  of  that  county,  or  chief  justice  of 
the  county,  or  a  notary  public  thereof,  or  any  associate 
or  chief  justice  of  the  supreme  court,  or  proved  by  a 
subscribing  witness  before  any  such  officer,  and  certi- 
fied by  him  for  record;  and  if  it  be  so  acknowledged 
and  certified,  there  need  be  no  subscribing  witnesses; 
and  the  register  shall  certify  thereon  the  day  when  the 
same  shall  be  delivered  for  registration,  give  a  receipt 
therefor,  if  required,  and  record  the  same  within  one 
month  thereafter,  under  the  forfeiture  to  the  party  in- 
jured, for  neglecting  either  particular,  of  five  hundred 
dollars,  and  accumulative  liability  to  such  party,  for 
recovery  of  vindictive  damages;  and  such  grant,  deed 
or  instrument,  so  delivered  for  registration,  shall,  ac- 
cording to  its  nature  and  character,  have  full  effect, 
validity,  and  priority,  from  and  after  its  date  of  presen- 
tation or  delivery  for  registration,  against  subsequent 
purclmsers  and  creditors ;  and  such  acknowledgment  or 
probate  certificate  and  registration,  or  either,  as  be- 
tween the  parties  and  their  legal  representatives,  and 
all  subsequent  purchasers  and  creditors,  with  actual 
notice,  or  reasonable  information  of  the  grant,  deed,  or 
instrument,  shall  not  be  deemed  requisite  in  order  to 
its  full  effect,  validity  and  priority,  according  to  its 
intrinsic  nature;  if  any  such  grant,  deed  or  instrument, 
executed  abroad,  shall  be  acknowledged  or  proved  by 
two  subscribing  ivitnesses,  before  any  circuit  or  supreme 

39  P.  D.  4978;   H.  D.   2777. 
17 


§  621      LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.  258 

ju(l(/(\  or  chancellor  of  the  United  States  of  North 
America,  certified  by  him,  with  the  certificate  of  tlie 
chief  magistrate  of  the  nation  as  to  the  official  character 
of  him  taking  the  acknowledgment  or  probate;  and  the 
great  seal  of  the  United  States,  thereto  annexed,  or  if 
so  acknowledged  or  proved  before  any  judge  of  a  su- 
preme  court  of  record,  or  in  any  snch  court  of  an,y  other 
nation  or  kingdom,  and  certified  by  such  judge,  or  the 
record  thereof  exemplified,  and  either  so  counter-cer- 
tified by  the  chief  magistrate  or  sovereign  of  such  other 
nation  or  kingdom,  under  the  great  seal;  or  by  the  con- 
sul of  this  republic,  or  minister  resident  there;  the 
same  shall  be  admitted  to  record,  and  shall  be  good  and 
effectual,  as  aforesaid,  from  and  after  registration." 

§  621.  Note. — Section  20  of  this  act  validates  certain 
acknowledgments  and  proof  taken  before  chief  justices 
of  the  county  court  or  notaries  public,  or  county  clerk 
in  whose  office  the  record  is  proposed  to  be  made.^^ 
This  act  differs  from  the  act  of  February  5,  1840,  in 
that  that  act  authorizes  (in  addition  to  county  clerks 
in  their  counties)  chief  justices  of  the  county  court,  dis- 
trict judges,  notaries  public  and  two  justices  of  the 
peace  of  any  county,  to  take  acknowledgments  and 
proof;  while  this  act,  February  5,  1841,  seems  to  require 
the  chief  justices  and  notaries  public  to  be  of  the  county 
where  the  instrument  is  to  be  registered,  omits  two 
justices  of  peace,  and  while  district  judges  are  not  men- 
tioned therein,  it  authorizes  any  associate  and  chief 
justice  of  the  supreme  court  to  act,  and  as  the  associate 
judges  were  composed  of  the  district  judges,  they  would 
still  be  authorized.^^  It  may  be  material  to  determine 
how  far  the  acts  of  February  5,  1840,  and  February  3, 
1841,  are  affected  by  the  act  of  February  5,  1841,  i.  e., 
first,  whether  or  not  the  authority  of  the  officers  men- 
tioned in  the  act  of  February  5,  1840,  was  revoked; 
second,  whether  or  not  the  officers  authorized  by  the 

40  Post,   §   1019. 

41  Ante,  §  596. 


259         LAWS  CONCEENING  AUTHOEITY  OF  OFFICERS.       §  622 

act  of  February  3,  1841,  to  take  acknowledgments  were 
disqualified  by  the  act  of  February  5,  1841;  and  third, 
whether  or  not  the  officers  mentioned  in  the  act  of  Feb- 
ruary 5,  1841,  were  authorized  to  take  acknowledgments 
of  married  women.  The  effect  of  the  act  of  February 
5,  1841,  besides  validating  all  acknowledgments  (if 
properly  taken  and  certified)  made  before  any  chief 
justice  of  the  county  court  or  notary  public,  or  county 
clerk  in  whose  office  the  record  is  proposed  to  be  made, 
appears  to  be: 

§  622.  1.  Did  not  Revoke  the  Authority  of  the  Officers  Pre- 
viously Authorized — Repeal  by  Implication. — The  act  of 
February  5,  1840,  is  an  act  concerning  conveyances,  reg- 
istration, etc.  The  act  of  February  5,  1841,  is  an  act 
of  limitations,  validations,  etc.,  and  does  not  purport 
to  revise  or  repeal  the  former  act,  and  it  is  not  clear 
that  it  was  intended  to  repeal  the  former.  The  latter, 
it  appears,  was  intended  to  validate  acts  of  certain  offi- 
cers previously  made,  and  provide  against  obscurity  in 
the  future  by  prescribing  what  officers  could  take  them 
both  within  and  without  the  state.  It  provides  that 
any  and  every  instrument  shall  be  duly  registered — 
upon  the  acknowledgment  of  the  party — before  certain 
officers  named.  The  question  as  to  whether  or  not  this 
revokes  the  authority  of  the  officers  authorized,  by  the 
former  act  (February  5,  1840)  does  not  seem  to  have 
been  decided."*^  In  oiie  case  it  was  held  that  the 
act  of  January  19,  1839,  which  provided  that  it  shall 
be  the  duty  of  clerks  to  record  instruments  presented 
to  them  for  record  provided  the  grantor  shall  ac- 
knowledge the  same — which  proof  or  acknowledgment 
shall  be  made  either  before  some  county  court  or  chief 
justice  thereof,  or  before  the  clerk  in  whose  office  the 
record  is  proposed  to  be  made — and  repealed  all  laws 
contrary  thereto,  revoked  the  authority  of  notaries  to 
take  acknowledgments,  by  omitting  them  from  its  pro- 

42  For  a  soincwhat  analogous  case,  see  Byrnes  v.  Sampson,  74  Tex. 
83. 


§  622      LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.  260 

visions."*^  But  it  will  be  noticed  that  the  act  of  Jan- 
uary 19,  1839,  differs  from  the  act  of  February  5,  1841, 
in  that  the  former  provides  that  all  laws  contrary 
thereto  are  repealed,  while  the  latter  does  not  purport 
to  repeal  others.  Again,  where  the  act  of  August  8, 
1870,  authorized  district  clerks  and  their  deputies  to 
take  acknowledgments,  and  the  act  of  May  6,  1871,  was 
passed  providing  that  the  same  may  be  taken  by  cer- 
tain officers  named,  omitting  deputies,  it  was  held  that 
the  latter  did  not  repeal  the  former,  and  that  deputies 
were  still  authorized ,  Justice  Gaines,  saying  of  the  lat- 
ter act,  that  "It  contains  no  repealing  clause,  and  if  it 
be  repealed,  it  must  be  by  implication.  Such  repeals 
are  not  favored." 

"In  Wood  V.  United  States,"**  Mr.  Justice  Story  uses 
this  language :  'We  say  necessary  implication,  for  it  is 
not  sufficient  to  establish  that  subsequent  laws  cover 
some,  or  even  all,  of  the  cases  provided  for  by  it;  for 
they  may  be  merely  affirmative,  cumulative  or  auxili- 
ary. There  must  be  a  positive  repugnance  between  the 
provisions  of  the  new  law  and  those  of  the  old ;  and  even 
then  the  old  law  is  repealed  by  implication  only  pro 
tanto  to  the  extent  of  the  repugnancy.'  Mr.  Bishop,  in 
course  of  a  discussion  of  the  doctrine  of  repeal  by  im- 
plication, says:  'Hence,  in  principle,  and  equally  on  the 
better  American  authorities,  and  on  the  English,  the 
just  doctrine  is  that  without  exception  a  statute  in 
affirmative  terms,  without  intimation  of  an  intent  to 
repeal  prior  laws,  does  not  repeal  them  unless  the  new 
and  old  are  irreconcilably  in  conflict.'"*^  Here,  then, 
is  no  irreconcilable  conflict.  The  language  of  the  later 
act  is  not  that  the  proof  or  acknowledgment  'shall  be 
taken,'  but  that  it  'may  be  taken'  before  'some  one'  of 
the  officers  named,  and  it  seems  to  me  is  perfectly  con- 

4.3  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691. 

44  16  Pet.  363,  10  L.  ed.  897. 

45  Bishop's  Written  Laws,  sec.  760. 


261   LAWS  CONCERNING  AUTHOEITY  OF  OFFICEES.    §§  623,  624 

sistent  with  the  former  law  which  permitted  other  offi- 
cers to  exercise  the  power."^^ 

§  623.  Idem — Revising  Prior  Statute. — The  rule  is  well 
settled  that  though  the  law  does  not  favor  repeals  by  im- 
plicatiou,  vet  a  subsequent  statute  revising  the  subject 
matter  of  the  former  one  and  intended  as  a  substitute 
for  it,  although  it  contains  no  express  words  to  that  ef- 
fect, will  operate  a  repeal  of  the  former,  to  the  extent 
to  which  its  provisions  are  supplied  or  reijealed.*'^ 
But  the  latter  (February  5,  1841)  does  not  revise  the 
subject  matter  of  the  former  (February  5,  1840).  A 
new  statute  which  comprehends  the  entire  subject  mat- 
ter of  the  previous  one,  and  enacts  a  new  and  independ- 
ent system  respecting  it,  repeals  and  supersedes  all 
prior  systems  and  laws  upon  the  same  subject  matter."*^ 
But  the  latter  (Februar}'  5,  1841)  does  not  comprehend 
the  entire  subject  matter  of  the  former  (February  5, 
1840).  Again,  the  constitution  of  1869  authorized  the 
creation  of  certain  criminal  courts.  This  provision 
was  omitted  from  the  constitution  of  1876,  and  it  is  held 
by  an  unbroken  line  of  decisions  that  by  reason  of  said 
omission,  said  provision  was  repealed,  and  said  court 
abrogated,  and  could  no  longer  form  part  of  the  judicial 
system  of  the  state.  And  that  the  rules  of  interpreta- 
tion are  the  same  whether  applied  to  statutes  or  consti- 
tutions.^^ 

§  624.  Idem — Where  Latter  is  Clearly  Intended  as  Substi- 
tute for  Former. — In  a  leading  case  on  this  question  in 

46  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665;  Gilleland  v.  Drake, 
36  Tex.  676;  Brown  v.  Chancellor,  61  Tex.  437;  and  see  Carolan  v. 
McDonald,   15  Tex.  329;   Thouvenin  v.  Rodregues,  24  Tex.  479. 

47  Stirman  v.  State,  21  Tex.  736;  State  v.  I.  &  G.  N.  E.  R.,  57 
Tex.  550;  Hanrick  v.  Hanriek,  61  Tex.  601;  Dickinson  v.  State,  38 
Tex.  Cr.  479,  41  S.  W.  760;  Coombs  v.  State,  38  Tex.  Cr.  648,  44  S. 
W.  858. 

48  Sutherland  on  Statutory  Construction,  133,  154,  and  note;  Steb- 
bins  V.  State,  22  Tex.  App.  32,  2  S.  W.  618. 

4»  Coombs  V.  State,  38  Tex.  Cr.  648,  44  S.  W.  858. 


§§  625,  626   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.   262 

this  state  it  is  held  that  if  a  subsequent  statute  be  not 
repugnant  in  all  its  provisions  to  a  prior  one,  yet  if  the 
latter  statute  was  clearly  intended  to  prescribe  the  only 
rule  which  should  govern,  it  repeals  the  prior  one.^® 
But  it  does  not  seem  clear  that  the  latter  (1841)  was 
intended  to  prescribe  the  only  rule. 

§  625.  Idem — Statutes  Relating  to  Same  Subject  Matter. 
Statutes  in  pari  materia  and  relating  to  the  same  sub- 
ject matter  are  to  be  construed  together,  because  it  is 
to  be  inferred  that  they  had  but  one  object  in  view,  and 
are  intended  to  be  considered  as  constituting  one  en- 
tire and  harmonious  system.  And  again,  "when  there 
are  different  statutes  in  pari  materia,  though  made  at 
different  times,  or  expired,  and  not  referring  to  each 
other,  they  shall  be  taken  and  considered  as  one  system 
and  as  explanatory  of  each  other."^*  A  statute  revis- 
ing the  subject  matter  of  a  former  repeals  it  to  the  ex- 
tent that  its  provisions  are  supplied.^^  Is  it  evident 
that  the  latter  act  (February  5,  1841)  was  clearly  in- 
tended as  a  substitute  for  the  former  (February  5, 
1840),  and  was  to  prescribe  the  only  officers  who  could 
take  acknowledgments  and  proof?  If  so,  it  repeals  the 
former  to  that  exent.  If  it  is  not  clear  that  such  was 
the  intention,  it  does  not.^^ 

§  626.  2.  Effect  on  Authority  of  Officers  Previously  Author- 
ized to  Take  Wife's  Acknowledgement. — It  seems  that  the 
authority  of  judges  of  the  district  court  and  chief  jus- 
tices of  the  county  court,  authorized  by  the  act  of  Feb- 
ruary 3,  1841,  to  take    acknowledgments    of    married 

50  Bryan  v.  Sundberg,  5  Tex.  423;  Rogers  v.  Watrous,  8  Tex.  oo, 
58  Am.  Dec.  100;  S.  L.  &  S.  W.  Ry.  Co.  v.  Kay,  85  Tex.  559,  22  S. 
W.  665;  State  v.  Travis  Co.,  85  Tex.  445,  21   S.  W.  1029. 

51  Selman  v.  Wolfe,  27  Tex.  72;  Cain  v.  State,  20  Tex.  362;  Taylor 
V.  Hall,  71  Tex.  218,  222,  9  S.  W.  141. 

52  Dickinson  v.  State^  38  Tex.  Cr.  479,  41  S.  W.  760. 

53  See  Towle  v.  Marrett,  14  Am.  Dec.  209;  McCartee  v.  Orphan 
Asylum  Soc,  18  Am.  Dee.  542;  Davis  v.  State,  61  Am.  Dec.  338,  note; 
State  V.  Massey,  4  L.  R.  A.  309,  note. 


263         LAWS  CONCEENING  AUTHOEITY  OF  OFFICEKS.       §  627 

women  was  not  revoked  by  the  act  of  February  5,  1841. 
The  acts  of  February  3  and  February  5,  1841,  were 
passed  by  the  same  legislature,  and  should  be  consid- 
ered together  and  as  but  one  law.®'*  In  the  first  case 
mentioned  the  court  said  "that  the  same  legislature  is 
supposed  to  be  actuated  in  all  that  it  does  by  the  same 
mind,  spirit  and  intention,  and  to  have  at  all  times  the 
same  governing  policy.  The  artificial  being  is  sup- 
posed to  be  of  but  one  mind,  and  that  a  rational  and  in- 
telligent one,  and  all  acts  in  pari  materia  are  to  be 
taken  together  and  as  if  they  were  but  one  law."  In 
Monroe  v.  Arledge,  23  Tex.  481,  it  is  held  that  the  act 
of  May  8,  1846,  authorizing  commissioners  of  deeds  to 
authenticate  instruments  of  writing  for  record,  being 
passed  at  the  same  legislature  as  the  act  of  May  12, 
1846,  was  not  repealed  by  it,  although  by  its  terms  the 
latter  act  seemed  to  limit  the  authentication  of  instru- 
ments to  notaries  and  county  clerks,  the  court  saying 
that  "both  acts  were  passed  at  the  same  session  and 
also  that  one  of  the  acts  was  special  and  the  other  gen- 
eral. Under  these  circumstances  it  required  very  plain 
inconsistency  or  contradiction  between  the  two  to  au- 
thorize the  opinion  that  the  latter  act  repealed  the 
former.     Such,  we  think,  does  not  exist  in  this  case."®^ 

^  627.  3.  Authorized  Additional  Ofiicers. — While  the  ques- 
tion is  still  in  doubt,  it  seems  that  the  act  of  February 
5,  1841,  authorized,  in  addition  to  the  ofiicers  previously 
authorized,  "first,  the  register  or  clerk  of  the  county 
court  of  the  county  in  which  the  record  is  to  be  made, 

54  G.  S.  &  N.  G.  R.  W.  Co.  V.  Gross,  47  Tex.  435;  Lovett  v.  Casey, 
17  Tex.  596;  Selman  v.  Wolfe,  27  Tex.  72;  Houston  etc.  Ey.  Co.  v. 
Ford,  53  Tex.  371;  Mitchell  Co.  v.  City  Nat.  Bank,  91  Tex.  374,  43 
S.  W.  880. 

55  See,  also,  Garton  v.  Hudson-Kiniborly  Pub.  Co.,  8  Okla.  631,  58 
Pac.  946;  Hess  v.  Trigrg,  8  Okla.  286,  57  Pac.  159;  New  York  etc. 
Ry.  Co.  V.  Bridgeport  Traction  Co.,  65  Conn.  410,  29  L.  E.  A.  368; 
Phoenix  Assur.  Co.  v.  Fire  Department,  117  Ala.  631,  23  South.  843, 
42  L.  R.  A.  469;  Citizens'  etc.  Parish  v.  Williams,  49  La.  Ann.  422, 
21  South.  647,  37  L.  R.  A.  761. 


§  627      LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.         264 

or  chief  justice  of  the  coimtv,  or  notary  public  thereof, 
or  any  associate  or  chief  justice  of  the  supreme  court" 
(within  the  state),  and  second,  any  circuit  or  supreme 
judge  or  chancellor  of  the  United  States  (without  the 
state  and  within  the  United  States),  and  third,  any 
judge  of  a  supreme  court  of  record  or  any  such  court 
(of  any  other  nation),  to  take  acknowledgments  of  both 
single  and  married  persons. 

It  is  clear  that  the  officers  named  in  the  act  of  Feb- 
ruary 5,  1841,  were  authorized  to  take  single  acknowl- 
edgments, the  only  question  being  as  to  their  authority 
to    take     acknowledgments    of    married    women.     The 
terms  of  this  statute  are  evidently  broad  enough  to  in- 
clude them,,  and  it  seems  that  this  was  the  intention  of 
the  legislature.     Unless  these  officers  were  authorized 
to  take  all  acknowledgments  there  would  have  been  no 
officers  beyond  the  limits  of  the  state  authorized  to  take 
a  married  woman's  acknowledgment  until  the  act  of 
April  30,  1846,  and  it  seems  that    the    legislature    in- 
tended to  provide  for  the  taking  of  married  women's  ac- 
knowledgments abroad,  as  well  as  those  of  others.     It 
seems  that  the  only  reason  for  questioning  the  above 
conclusion  is  that  both  the  acts  of  February  3  and  Feb- 
ruary 5,  1841,  were  passed  by  the  same  legislature,  and 
should  be  construed  together,^*^  and  that  the  former,  be- 
sides    providing    how     acknowledgments     of    married 
women  must  be  taken,  authorized  certain  officers  to  take 
them ;  but  that  would  not  necessarily  prevent  other  offi- 
cers being  authorized  also.     Again,  it  might  be  argued, 
against  their  authority,  that  the  latter  act  provided  that 
the  instruments  referred  to  therein  may  be  acknowl- 
edged or  proved  before  any  of  said  officers,  and  as  a 
married   woman's  deed   could  not  be  proved   by  sub- 
scribing witnesses,   the  said  act  did  not  contemplate 
their  deeds.     But  we  take  it  that  these  reasons  would 
weigh   little   against  the   plain   language  used   in   the 
said  act  of  February  5,  1841,  and  the  apparent  intent 
of  the  legislature  to  make  it  apply  to  all  acknowledg- 

56  Post,    §    647. 


265   LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.    §§  628-631 

ments.  These  acts  of  February  3,  1841,  and  February 
5,  1841,  are  not  repugnant  nor  inconsistent,  the  prior 
authorizing  judge  of  the  district  court  and  chief  jus- 
tices of  the  county  court  to  take  acknowledgments  of 
married  women,  the  latter  authorizing  other  and  addi- 
tional oflQcers  to  take  any  and  every  acknowledgment. 
If  the  latter  had  been  passed  by  a  subsequent  legisla- 
ture, the  authority  of  the  ofiflcers  named  to  take  both 
single  and  joint  acknowledgments  could  not  be  ques- 
tioned.^'^ 

§  628.  Idem — Statutes  Should  be  Construed  so  that  Both 
may  Stand. — Again,  statutes  should  be  construed  so  that 
both  may  stand,^^  and  give  effect  to  each  and  all  parts,^® 
and  when  there  are  repugnant  provisions  in  a  statute 
the  latter  in  position  controls.^® 

§  629.  Idem — Where  Both  may  Stand,  Parties  have  Their 
Election  of  Remedies. — Again,  where  prior  and  subsequent 
statutes  are  not  repugnant,  both  stand,  and  parties  have 
election  of  their  remedy.®^ 

§  630.  Idem — Cases  not  Decisive. — The  cases  of  Cole  v. 
Bammel,  62  Tex.  Ill,  and  AVadkins  v.  Watson,  86  Tex. 
194,  24  S.  W.  385,  22  L.  R.  A.  779,  seem  to  refer  only 
to  the  manner  of  taking  married  women's  acknowledg- 
ments, and  not  to  the  authority  of  officers  taking  them.**^ 

§  631.  Authority  Revoked  When. — The  authority  of  the 
officers  named  in  the  above  act,  as  to  acknowledgments 
of  married  women,  was  probably  revoked  by  the  act  of 

57  Post,  §§  652-656;  Thompson  v.  .Johnson,  84  Tex.  358,  19  S.  W. 
784;  Norton  v.  Davis,  83  Tex.  32,  18  S.  W.  430;  Ruleman  v.  Pritchett, 
56  Tex.  483;  Wilson  v.  Simpson,  68  Tex.  312,  4  S.  W.  839. 

58  Berry  v.   Childress,   32   Tex.   372. 

59  Aldridge  v.  Mardoff,  32  Tex.  207. 

60  Gulf  etc.  Ry.  Co.  v.  Rambolt,  67  Tex.  657,  4  S.  W.  356. 

61  Thouvenin  v.  Rodrigues,  24  Tex.  478;  Webb  v.  Mallard,  27  Tex. 
83;  Missouri  Pac.  Ry.  v.  Barkhurst,  3  Tex.  App.  Civ.  199. 

62  See  post,  §§  652-656. 


§§  632-634   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    266 

April  30,  1846,^*  and  as  to  those  of  other  persons  by 
the  act  of  May  12,  1846.^ 

§  632.  Act  of  January  3,  1842''^ — Associate  Justices. — 
''An  act  to  extend  the  duties  of  associate  justices  of  the 
county  courts.  Section  1.  Be  it  enacted  by  the  Sen- 
ate and  House  of  Eepresentatives  of  the  republic  of 
Texas,  in  Congress  assembled,  that  hereafter  it  shall  be 
lawful,  and  it  is  hereby  made  the  duty  of  the  associate 
justices  of  the  county  court,  in  case  of  a  vacancy  of  the 
office  of  chief  justice  of  the  county  court,  or  inability 
of  that  officer,  from  any  cause  whatever,  to  discharge 
the  duties  of  his  office,  to  discharge  the  duties  of  the 
said  chief  justice,  until  such  inability  shall  be  removed, 
or  the  vacancy  filled. 

"Sec.  2.  Be  it  further  enacted,  that  this  act  shall 
take  effect  from  and  after  its  passage." 

§  633.  Act  of  January  10,  1845«6_Notaries.— "An  act 
allowing  two  additional  notaries  public  for  Montgom- 
ery and  other  counties  [taking  effect  November  15, 
1845] .  Section  5.  Be  it  further  enacted,  that  notaries 
public  be  authorized  to  perform  all  such  duties  as  chief 
justices  of  county  courts  are  required  to  perform,  by 
virtue  of  their  office  as  ex-officio  notaries  public." 

§  634.  Construction  of  Above  Statute. — The  duties  of 
notaries  public  are  defined  in  Hartley's  Digest,  section 
2588,  act  of  December  20,  1836.*^''  At  this  time  (March 
15,  1845)  notaries  were  authorized  to  take  single  ac- 
knowledgments, and  probably  joint  acknowledgments, 
by  virtue  of  the  act  of  February  5,  1841.^*  As  chief 
justices  of  county  courts  were  at  this  time  authorized 

63  Post,   §   641. 

64  Post,  §§  644-646. 

65  2  L.  T.  701. 

66  2  L.  T.  1059. 

67  Ante,  §  597.  .  ' 

68  Ante,  §  627. 


267    LAWS  CONCERNING  ATJTHOETTY  OF  OFFICERS.    §§  634a,  635 

directly  to  take  acknowledgments  of  married  women 
(by  act  of  February  3,  1841),  and  possibly  indirectly  as 
ex-ofiacio  notaries  public  (by  the  act  of  December  20, 
1836),^**  there  is  some  doubt  as  to  what  the  legislature 
meant  in  the  above  act,  by  "all  such  duties  as  chief  jus- 
tices of  county  courts  are  required  to  perform,  by  virtue 
of  their  office  as  ex-officio  notaries  public."  It  seems, 
however,  that  the  intention  was  to  distinguish  between 
his  official  acts  as  judge  of  the  county  court  and  other 
acts  usually  performed  by  notaries.  If  this  is  the  cor- 
rect construction,  the  above  act  would  authorize  no- 
taries to  take  the  acknowledgments  of  married  women 
as  well  as  other  acknowledgments.''^ 

§  634a.  Constitution  of  July  4  (August  27),  1845''*-, 
Laws  Continued  in  Force. — "Section  10.  That  no  incou 
venience  may  result  from  the  change  of  government,  it 
is  declared  that  the  laws  of  this  republic,  relative  to 
the  duties  of  officers,  both  civil  and  military,  of  the 
same,  shall  remain  in  full  force ;  and  the  duties  of  their 
several  offices  shall  be  performed  in  conformity  with 
the  existing  law,  until  the  organization  of  the  govern- 
ment of  the  state,  under  this  constitution,  or  until  the 
first  day  of  the  meeting  of  the  legislature;  that  then 
the  officers  of  president,  vice-president,  of  the  presi- 
dents, cabinet,  foreign  ministers,  charg(^s,  and  agents, 
and  others  repugnant  to  this  constitution,  shall  be  su- 
perseded by  the  same;  and  all  others  shall  be  hoiden 
and  exercised,  until  they  expire  by  their  own  limitation, 
or  be  superseded  by  the  authority  of  this  constitution 
or  laws  made  in  pursuance  thereof." 

§  635.  Act  of  April  29,  1846'2— Separate  Property  of  Wife. 
"To  provide  for  the  registration  of  the  separate  prop- 
erty of  married  women   [taking  effect  June  22,  1846]. 

69  Post,  §  663. 

70  Post,  §  652,  etc. 

71  2  L.  T.  1301. 

72  2  L.  T.  1459;  P.  D.  4996. 


§§  636,  637   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    268 

Section  2.  Be  it  further  enacted,  that  each  ivoman 
now  ))iarric(l,  or  who  may  be  hereafter  married,  may  jjre- 
sent  to  aiti/  officer  nnthorized  by  law  to  prol)ate  deeds, 
or  other  instruments  for  record,  a  schedule,  particularly 
describing  all  the  property,  real  and  personal,  which 
she  now  owns  and  possesses,  or  which  she  may  own  and 
possess  at  the  time  of  her  marriage,  and  make  acknowl- 
edgment before  such  officer,  that  the  property  described 
in  the  schedule  is  her  separate  property ;  and  upon  such 
acknowledgment,  the  officer  aforesaid,  shall  give  a  cer- 
tificate of  the  fact  under  his  hand  and  seal  of  office, 
which  certificate  shall  be  sufficient  evidence  for  the  re- 
corder of  any  county  to  register  the  said  schedule." 

§  636.  Note. — This  act  seems  broad  enough  to  au- 
thorize officers,  w^ho  Avere  authorized  to  take  single  as 
well  as  joint  acknowledgments,  to  take  her  acknowledg- 
ment to  her  schedule. 

§  637.  Act  of  April  30,  1846"^— Acknowledgments  of  Mar- 
ried Women  Within  the  State.— "An  act  defining  the  mode 
of  conveying  property  in  which  the  wife  has  an  interest 
[took  effect  June  22,  1846].  Section  1.  Be  it  enacted 
by  the  legislature  of  the  state  of  Texas,  that  when  a 
husband  and  his  wife  have  signed  and  sealed  any  deed 
or  other  writing  purporting  to  be  a  conveyance  of  any 
estate  or  interest  in  any  land,  slave  or  slaves,  or  other 
effects,  the  separate  property  of  the  wife,  or  of  the 
homestead  of  the  family,  or  other  property  exempted 
by  law  from  execution,  if  the  wife  appear  before  any 
judge  of  the  supreme  or  district  court  or  notary  public^ 
and  being  privily  examined,  by  such  officer,  apart  from 
her  husband,  shall  declare  that  she  did  freely  and  ivill- 
ingly  sign  and  seal  the  said  writing  to  be  then  shown 
and  explained  to  her,  and  wishes  not  to  retract  it,  and 
shall  acknowledge  the  said  deed  or  writing,  so  again 
shown  to  her  to  be  her  act,  thereupon  such  judge  or 
notary  shall  certify  such  privy  examination,  acknowl- 

73   2  L.  T.  1462;  P.  D.  1003;  H.  D.  174. 


269         LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.       §  638 

edgment  and  declaration,  under  his  hand  and  seal,  by  a 
certificate  annexed  to  said  writing  to  the  following  ef- 
fect or  substance,  viz. : 

"  'State  of  Texas,        | 

County  of .    \ 

"  'Before  me,  judge  of,  or  notary    public    of  

county,  personally  appeared ,  wife  of 


parties  to  a  certain  deed  or  writing  bearing  date  on 
the day  of  ,  and  hereto  annexed,  and  hav- 
ing been  examined  by  me  privily  and  apart  from  her 
husband,  and  having  the  same  fully  explained  to  her, 

she,  the  said  •,  acknowledged  the  same  to  be 

her  act  and  deed,  and  declared  that  she  had  willingly 
signed,  sealed  and  delivered  the  same,  and  that  she 
wished  not  to  retract  it ;  to  certify  which  I  hereto  sign 

my  name  and  affix  my  seal,  this day  of ,  A. 

D.  — .' 

"But  any  certificate  showing  that  the  requisites  of 
the  law  have  been  complied  with,  shall  be  as  valid  as  the 
form  here  prescribed;  and  such  deed  or  conveyance,  so 
certified,  shall  pass  all  the  right,  title  and  interest 
which  the  husband  and  wife,  or  either  of  them,  may 
have  in  or  to  the  property  therein  conveyed." 

§  638.  Acknowledgments  of  Married  Women  Without  the 
State. — "Section  2'^  Be  it  further  enacted  that  when  a 
husband  and  ivife  have  signed  and  sealed  any  deed,  of 
the  character  described  in  the  first  section  of  this  act, 
out  of  this  state,  but  within  the  United  states,  or  any 
of  their  territories,  if  the  wife  appear  before  any  judge 
of  a  court  of  record  having  a  seal,  in  any  of  said  states 
or  territories,  and  be  examined,  and  make  the  declara- 
tions and  acknowledgments  provided  for  in  said  section, 
and  such  judge  shall  make  a  certificate  thereof  in  the 
manner  provided  for  in  said  section,  and  attest  the 
same  under  his  hand  and  seal  of  his  court,  such  deed 
shall  have  the  same  force  and  effect  as  if  the  same  had 

74   H.  D.  175;   p.  D.  1004. 


§§  639-641    LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    270 

been  done  in  this  state,  before  any  of  tbe  officers  named 
in  said  section;  and  where  any  such  deed  shall  have 
been  sij^ned  and  sealed  out  of  the  United  States,  such 
examinations,  declarations  and  acknowledgments,  may 
be  taken  or  made  before  any  puhlic  minister,  cliarqe 
d'aff aires,  or  consul  of  the  United  States,  and  the  cer- 
tificate of  such  minister,  charge  d'affaires,  or  consul,  in 
the  manner  and  form  provided  for  in  said  section,  and 
attested  under  their  hand  and  official  seal,  shall  have  the 
same  force  and  effect  as  if  such  examination,  declaration 
and  acknowledgment  had  been  taken  or  made  and  cer- 
tified in  this  state,  before  any  of  the  officers  named  in 
said  first  section." 

§  639.  Law  Applies  to  What  Property. — "Section  Z7^ 
Be  it  further  enacted  that  this  act  is  intended  to  apply 
to  the  property  mentioned  in  the  twenty-second  section 
of  the  seventh  article  of  the  constitution,  as  well  as  to 
the  property  owned  or  claimed  by  the  wife  before  mar- 
riage, and  that  acquired  afterward  by  purchase,  gift, 
devise  or  descent." 

§  640.  Former  Laws  Repealed. — "Section  4.''^  Be  it  fur- 
ther enacted,  that  all  former  laws  and  parts  of  laws, 
concerning  the  mode  of  conveyance  of  property  in  which 
the  wife  has  an  interest,  be  and  the  same  are  hereby  re- 
pealed." 

§  641.  Effect  of  Above  Law. — It  seems  that  this  act  be- 
ing a  substitute  for,  and  repealing  all  former  laws  and 
parts  of  laws  concerning  the  mode  of  conveyance  by 
the  wife,  and  naming  judges  of  the  supreme  and  district 
courts  and  notaries  public  as  the  authorized  officers, 
may  limit  the  authority  to  take  the  wife's  acknowledg- 
ment to  those  officers,  and  possibly  chief  and  associate 
justices  of  the  county  courts  as  ex-officio  notaries.''''     It 

75  H.  D.   176. 

76  H.  D.  177. 

77  Post,  §§  662-666  and  860. 


271  LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.     §  641a 

is  held  that  the  act  of  April  30,  1846,  prescribed  the  ouly 
mode  in  which  a  married  woman  can  convey  her  real 
estate.'^  In  Cole  v.  Bammel  the  court  says:  "Our 
statutes,  in  their  watchful  care  over  the  rights  of  mar- 
ried women,  have  prescribed  the  only  manner  in  which 
their  separate  property  may  be  conveyed  by  deed,  and 
any  conveyance  not  executed  in  strict  conformity  with 
the  statute  is  an  absolute  nullity."  "Reposing  con- 
fidence in  certain  officers  named  for  that  purpose  it  re- 
quires that  one  of  them  shall  examine  the  wife  privily 
and  apart  from  her  husband,"  etc.  But  the  question 
at  issue  in  that  case  was  the  manner  in  which  a  married 
woman's  acknowledgment  must  be  taken,  and  not  the 
authority  of  the  officers  taking  same.  The  case  of 
Wadkins  v.  Watson  refers  also  to  the  manner  of  its 
taking,  and.  not  to  the  officers  authorized  to  take  the 
acknowledgments,  as  many  other  officers  have  been  so 
authorized  since  the  passage  of  said  act.  and  were  so  au- 
thorized at  the  date  of  the  said  decisions.''® 

As  to  when  the  authority  of  the  different  officers  was 
revoked,  see  them  considered  separately  hereafter.^^ 

§  641a.  Effect  on  Prior  Acts. — It  should  also  be  noted 
that  under  the  acts  of  December  20,  1836,  and  January 
26,  1839,  chief  justices  of  the  county  courts  were  ex- 
officio  notaries  public,  and  by  virtue  of  their  offices,  au- 
thorized to  act  as  such.^^  It  is  questionable  whether 
or  not  these  acts  of  December  20,  1836,  and  January  26, 
1839,  were  repealed  (on  July  13,  1846),  by  the  act  of 
May  13,  1846,  entitled  "An  act  organizing  county 
courts."*^ 

78  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  E.  A.  779; 
Cole  V.  Bammel,  62  Tex.  3. 

79  See  post,  §§  674,  681,  683,  686,  688,  691,  695,  703,  and  Revised 
Statutes  of  1895,  article  4613,  and  Thompson  v.  Johnson,  84  Tex.  553, 
19  S.  W.  784;  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691.  Also 
see  post,  §§  647-656,  662. 

80  Chapters   21-27. 

81  Butler  V.  Dunagan,  19  Tex.  559;  Wilson  v.  Simpson,  68  Tex, 
313,  4  S.  W.  839. 

82  Post,  §§  662-666. 


§§  642-644   LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.    272 

§  642.  The  Act  of  May  2,  1846-^*^— Chief  Justices  to  Hold 
Over. — ^This  act  authorized  chief  justices  of  the  county 
court  elected  on  the  first  Monday  in  February,  1846,  to 
perform  the  duties  of  their  office,  until  their  successors 
are  elected  and  qualified,  and  validated  their  acts. 

§  643.  Act  of  May  13  (June  22),  18468^— Notaries.— 
This  act  provided  that  notaries  public  may  take  the  ac- 
knowledgments or  proof  of  all  instruments  of  writing  in 
the  manner  provided  for  by  law,  to  entitle  them  to  regis- 
tration in  the  office  of  the  county  recorder,  and  give 
certificate  of  all  such  acknowledgments  and  proofs,  un- 
der their  hands  and  official  seals ;  they  may  take  the  ex- 
amination and  acknowledgments  of  married  women  to 
all  deeds  and  instruments  of  writing,  conveying  their 
separate  property  and  their  interest  in  the  homestead 
in  the  manner  provided  by  law.  (This  is  the  same  in 
effect  as  acts  of  April  30,  and  May  12,  1846.) 

.  §  644.  Act  of  May  12,  1846*=5_officers  Authorized. — '^\n 
act  to  provide  for  the  registry  of  deeds  and  other  instru- 
ments of  writing  [took  effect  July  13,  1846].  Section 
11.  Proof  or  acknowledgment  of  every  instrument  of 
writing  for  record,  shaU  be  taken  by  some  one  of  the 
following  officers :  First,  when  acknowledged  or  proven 
within  the  state,  before  some  notary  puhllc  or  clerk  of 
the  county  court  of  any  county  in  the  state;  second, 
when  acknowledged  or  proven  without  this  state,  and 
within  the  United  States  or  their  territories,  before 
some  judge  of  a  court  of  record  having  a  seal;  third, 
when  acknowledged  or  proven  without  the  United 
States,  before  some  public  minister,  charge  d'affaires, 
or  consul  of  the  United  States;  and  in  all  cases  the 
certificate  of  such  acknowledgment  or  proof  shall  be 
attested  under  the  official  seal  of  the  officer  taking  the 
same." 

83  2  L.  T.  1471. 

84  2  L.  T.  1647;  H.  D.  2606. 

85  2  L.  T.  1544;  P.  D.  5011;  H.  D.  2794. 


273    LAWS  CONCEENING  AUTHOEITY  OF  OFFICERS.    §§  645-647 

§  645.  Prior  Laws  Repealed. — "Section  19.  All  laws 
and  parts  of  laws  conflicting  with  the  provisions  of 
this  act  be,  and  the  same  are  hereby,  repealed." 

§  646.  Effect  of  This  Act — First,  as  to  Its  Revocation  of 
the  Authority  of  Officers  Previously  Authorized  to  Take  Ac- 
knowledgments of  All  Persons  Except  Married  Women. — To 
wit:  Under  the  act  of  February  5,  1841,  county  clerks 
and  their  deputies,^**  chief  justices  of  the  county  court 
and  notaries  public,  of  the  county  where  the  land  lieth ; 
and  any  chief  or  associate  justice  of  the  supreme  court. 
And  under  the  act  of  February  5,  1840,  county  courts 
and  county  clerks  and  their  deputies  in  the  counties 
where  the  land  lies ;  and  any  district  judge,  chief  justice 
of  the  county  court,  notary  public,  and  two  justices  of 
the  peace  of  any  county.  The  provisions  of  the  act  of 
May  12,  1846  (that  "acknowledgments  of  every  instru- 
ment of  writing  shall  be  taken  before  some  one  of  the  fol- 
lowing officers,  to  wit:  A  notary  public  or  clerk  of  the 
county  court  of  any  county  in  the  state,"  and  that  con- 
fliicting  laws  are  repealed),  revokes  the  authority  of  all 
officers  except  county  clerks  and  notaries  public,  to  take 
all  acknowledgments  except  those  of  married  women.®'"' 
"Notaries  public"  include  chief  justices  of  the  county 
court  who  were  ex-ofificio  notaries  public  under  the  acts 
of  December  20,  183G,  and  January  26,  1839,^®  unless 
these  acts  were  repealed  by  the  act  of  May  13,  1846,  or- 
ganizing county  courts.®^ 

§  647.  Second,  as  to  Its  Revocation  of  the  Authority  of 
Officers  Previously  Authorized  to  Take  Acknowledgments  of 
Married  Women. — To  wit:  Any  judge  of  the  supreme  or 
district  court,  notary  public   and    cliief   justice  of   the 

86  See     §    606. 

87  Ante,  §§  622-631;  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S. 
W.  691;  Bryan  v.  Sundberg,  5  Tex.  423;  Talbert  v.  Dull,  70  Tex. 
679,  8  S.  W.  530;  Herndon  v.  Eeed,  82  Tex.  667,  18  S.  W.  665. 

88  Wilson  V.  Simpson,  68  Tex.  313,  4  S.  W.  839. 

89  Post,  §§  662-664. 

18 


§§  648,  649   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    274 

ooiiiUy  court  as  ex-officio  notary  public,  under  the  act 
of  April  30,  1840).^*^  It  seems  that  the  act  of  May  12, 
1S4(),  (loos  not  revoke  nor  affect  the  authority  of  the  offi- 
cers authorized  by  the  act  of  April  30,  1846,  to  take  ac- 
knowledgments of  married  Avomen.^* 

§  648.  Idem— Acts  of  April  30,  1846,  and  May  13,  1846, 
Should  be  Construed  Together. — These  two  acts  were  passed 
by  the  same  legislature,  and  should  be  considered  to- 
gether and  as  but  one  complete  law.^^  In  the  first  case 
referred  to,  the  court  said:  "That  the  same  legislature 
is  supposed  to  be  actuated  in  all  that  it  does  by  the 
same  mind,  spirit  and  intention,  and  to  have  at  all 
times  the  same  governing  policy.  The  artificial  being 
is  supposed  to  be  of  but  one  mind,  and  that  a  rational 
and  intelligent  one,  and  all  acts  in  pari  materia  are 
to  be  taken  together  as  if  they  were  but  one  law."  In 
Monroe  v.  Arledge,  23  Tex.  481,  it  is  held  that  the  act 
of  May  8,  1846,  authorizing  commissioners  of  deeds  to 
authenticate  instruments  of  writing  for  record,  being 
passed  at  the  same  legislature  as  the  act  of  May  12, 
1846,  was  not  repealed  by  it,  although  by  its  terms  the 
latter  act  seemed  to  limit  the  authentication  of  instru- 
ments to  notaries  and  county  clerks,  the  court  saying 
that  "both  acts  were  passed  at  the  same  session,  and 
also  that  one  of  the  acts  was  special  and  the  other  gen- 
eral. Under  these  circumstances  it  required  very  plain 
inconsistency  or  contradiction  between  the  two  to  au- 
thorize the  opinion  that  the  latter  act  repealed  the  for- 
mer.    Such,  we  think,  does  not  exist  in  this  case." 

§  649.  Idem — Acts  Passed  by  Same  Legislature. — Again,  it 
is  held  that  a  more  liberal  rule  of  construction  should  be 
allowed  against  the  repeal  of  one  statute  by  another 
by  implication,  when  both  are  passed  by  the  same  legis- 

90  See   §    641. 

91  §  648. 

92  Galveston  S.  &  N.  G.  R.  W.  Co.  v.  Gross,  47  Tex.  435;  Lovett 
V.  Casey,  17  Tex.  596;  Salman  v.  Wolfe,  27  Tex.  72;  Mitchell  Co.  v. 
City  Nat.  Bank,  91  Tex.  374,  43  S.  W.  880. 


275   LAWS  CONCERNING  AUTHOEITT  OF  OFFICEES.    §§  650,  651 

lature,  than  would  prevail  if  the  last  act  were  passed  at 
a  subsequent  session.  Both  of  the  acts  referred  to 
contemplated  the  same  subject  matter,  and  the  court 
said:  "We  are  not  advised  why  the  legislature  at  the 
same  session  passed  two  separate  acts  so  similar  in 
their   provisions,"   etc.^* 

§  650.  Idem — General  and  Special  Laws  Construed. — 
Again,  the  act  of  June  30,  1846,  is,  in  one  sense,  a  spe- 
cial law,  applving-  only  to  acknowledgments  of  married 
women,  while  the  act  of  May  12,  1846,  is  a  general  law. 
A  general  law  will  not  be  held  to  repeal  a  special  law 
on  the  same  subject.^* 

§  651.  Idem— Act  of  April  30,  1846,  Prescribed  Only  Mode 
for  Married  Women.— The  act  of  April  30,  1846,  pre- 
scribed the  only  mode  in  which  a  married  woman  can 
convey  her  real  estate. ^^  It  seems  that  the  effect  of 
these  decisions  is  to  hold  that  the  act  of  May  12,  1846, 
did  not  affect  the  act  of  April  30,  1846,  nor  change  the 
mode  in  which  a  married  woman's  deed  could  be  au- 
thenticated, nor  revoke  the  authority  of  the  officers  au- 
thorized by  the  act  of  April  30,  1846.  In  Cole  v.  Bam- 
mel,^**  the  court  says:  "Our  statutes,  in  their  watchful 
care  over  the  rights  of  married  women,  have  prescribed 
the  only  manner  in  which  their  separate  property  may 
be  conveyed  by  deed,  and  any  conveyance  not  executed 
in  strict  conformity  with  the  statute  is  an  absolute 
nullity."  "Reposing  confidence  in  certain  officers 
named  for  the  purpose,  it  requires  that  one  of  them 
shall  examine  the  wife  privily  and  apart  from  her  hus- 
band," etc.^^ 

93  H.  &  L.  C.  Ey.  Co.  v.  Ford,  53  Tex.  370. 

94  Ellis  V.  Batts,  26  Tex.  704;  City  of  Laredo  v.  Martin,  52  Tex. 
562;  Monroe  v.  Arledge,  23  Tex.  481. 

95  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  E.  A. 
779;  Cole  v.  Bammel,  62  Tex.  Ill;  Nichols  v,  Gordon,  25  Tex.  Supp. 
J  09;  Berry  v.  Donley,  26  Tex.  743;  Cross  v.  Evarts,  28  Tex.  534. 

96  62  Tex.  111. 

97  Ante,  §  641. 


§  652      LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.  276 

§  662.  Third,  May  Officers  Named  in  Act  of  May  12,  1846, 
Take  Wife's  Acknowledgment? — As  to  the  authority  of  the 
officers  named  in  the  act  of  May  12,  1846,  to  take  ac- 
knowledgments of  both  single  and  married  persons. 
The  only  question  is  as  to  those  of  married  women.  The 
language  of  said  statute  is  broad  enough  to  include  her 
acknowledgments  also,  and  was  probably  so  intended. 
If  that  is  not  the  proper  construction  to  put  upon  it, 
the  reason  for  not  so  construing  it  w^ould  seem  to  be: 
(a)  That  this  act  and  that  of  April  30,  1846,  were 
passed  at  the  same  session  of  the  legislature,  and  should 
be  construed  together  as  forming  one  complete  law,^* 
and  that  the  act  of  April  30,  1846  (or  the  first  part  of 
the  complete  law),  provided  what  officers  could  take 
the  wife's  acknowledgments,  wiiich  might  exclude  other 
officers,  (b)  That  the  act  of  April  30,  1846,  w^as  "an 
act  defining  the  mode  of  conveying  property  in  which 
the  wife  has  an  interest,"  while  the  act  of  May  12,  1846, 
was  "an  act  to  provide  for  the  registry  of  deeds  and 
other  instruments  of  writing,"  and  that  as  the  acknowl- 
edgment is  the  wife's  deed,®^  it  might  be  held  that  the 
latter  act,  pertaining  to  the  registration  of  deeds,  did 
not  contemplate  the  execution  of  the  wife's  deed,  and 
that  the  officers  mentioned  in  the  latter  had  no  author- 
ity to  authenticate  or  validate  her  deeds.  This  seemed 
to  be  the  offhand  opinion  of  the  court  in  the  case  of 
Cole  V.  Bammel,^^^  but  that  question  was  not  before 
the  court.*^^  (c)  The  legislature  considered  the  author- 
ity of  county  clerks,  under  said  act  of  May  12,  1846,  to 
take  acknowledgments  of  married  women,  at  least 
doubtful,  for  it  provided  for  same  by  a  special  act  of 
December  14,  1849.^^^  Again,  the  language  used  in 
section  27  of  the  act  of  March    16,  1848,^**'*    indicates 

98  Ante,  §  648. 

99  Ante,  §  247. 

100  62  Tex.  111. 

101  Ante,  §  641. 

102  Post,  §  681. 

103  Post,  §  674. 


277   LAWS  CONCEENING  AUTHOEITY  OF  OFFICEES.    §§  653,654 

that  the  legislature  distinguished  between  the  taking  of 
acknowledgments  for  the  purposes  of  registration  and 
taking  the  wife's  examination  and  acknowledgment. 

§  653.  Idem — Acts  Passed  at  Different  Legislatures. — On 
the  other  hand,  it  is  clear  that  if  the  latter  act  had  been 
passed  at  a  subsequent  instead  of  at  the  same  legisla- 
ture, its  provisions  would  have  clearly  authorized  the 
officers  named  therein  to  take  both  single  and  joint  ac- 
knowledgments, for  its  terms  are  broad  enough  to  in- 
clude acknowledgments  of  all  persons;  and  subsequent 
statutes  in  practically  identical  terms  have  been  held 
to  authorize  the  ofBcers  named  therein  to  take  the  wife's 
as  well  as  all  other  acknowledgments,  as  in  case  of  the 
act  of  May  6,  1871/^^  The  courts,  in  holding  the  two 
statutes  passed  at  the  same  legislature  are  to  be  con- 
strued as  constituting  one  complete  law,  have  evidently 
had  in  mind  the  effect  of  the  subsequent  upon  the  prior 
statute,  rather  than  the  effect  of  prior  upon  the  subse- 
quent. And  it  seems  that  the  object  is  to  save  the 
prior,  and  prevent  its  being  repealed  by  the  subsequent 
conflicting  statute,  rather  than  to  limit  the  operation 
of  the  latter,  for  where  there  is  irreconcilable  conflict 
the  latter  always  repeals  the  former. -^^^^ 

§  654.  Idem — Statutes  Construed  Tog-ether. — Statutes 
should  be  construed  so  that  both  may  stand,^**^  and  to 

104  Thompson  v.  Johnson,  84  Tex.  553,  19  S.  W.  784;  Wilson  v. 
Simpson,  68  Tex.  312,  4  S.  W.  839;  Chicago  etc.  Ey.  Co.  v.  Tittering- 
ton,  84  Tex.  219,  31  Am.  St.  Eep.  39,  19  S.  W.  472;  Leach  v.  Dodson, 
64  Tex.  189;  Miller  v.  Yturria,  69  Tex.  552,  7  S.  W.  206;  Norton  v. 
Davis,  83  Tex.  32,  18  S.  W.  430.  See  acts  of  April  6,  1861  (post,  § 
686),  January  14,  1862  (post,  §  688),  November  13,  1866  (post,  § 
691),  August  8,  1870  (post,  §  695),  May  6,  1871  (post,  §  703);  Eev. 
Stats.  1895,  art.  4613. 

105  Ante,  §§  622-631;  State  v.  Massey,  4  L.  E.  A.  309,  note;  Citi- 
zens' etc.  Parish  v.  Williams,  49  La.  Ann.  422,  21  South.  647,  37 
L.  E.  A.  761;  Phoenix  Assur.  Co.  v.  Fire  Department,  117  Ala.  631, 
32  South.  843,  42  L.  E.  A.  469. 

106  Berry  v.  Childress,  32  Tex.  372. 


§§  655-6;-7    LAWS  CONCERNING  AUTHOEITY  OF  OFFICEES.    278 

give  effect  to  each  and  all  parts.**^''  And  where  there 
are  repugnant  provisions  in  a  statute  the  latter  in  posi- 
tion controls.**** 

§  655.  Idem— Act  of  April  30,  1846,  not  Intended  to 
Name  Only  Officers  to  be  Authorized. — Again,  it  is  clear 
that  the  legislature  did  not  intend  that  the  officers 
named  in  the  act  of  April  30,  1846,  should  be  the  only 
officers  authorized  to  authenticate  deeds  of  married 
women,  as  it  also  provided  for  commissioners  of  deeds 
for  other  states,  and  authorized  them  to  take  her  ac- 
knowledgments by  the  act  of  May  8,  1846.*<*^ 

§  656.  Idem — Proper  Construction  of  Above  Act. — It 
seems  that  the  construction  which  would  most  nearly 
permit  both  acts  to  stand  in  entirety  would  be  to  con- 
strue the  act  of  April  30,  1846,  as  authorizing  the  offi- 
cers therein  named  to  take  only  joint  acknowledgments, 
and  the  act  of  May  12,  1846,  as  authorizing  the  officers 
therein  named  to  take  all  acknowledgments,  both  joint 
and  single,  but  it  seems  to  be  still  an  open  question.*** 
Where  the  new  and  the  old  statutes  are  not  repugnant, 
parties  have  the  election  of  their  remedy.*** 

§  657.  The  Act  of  May  13,  1846.ii2_a^jj  g^^^  organizing 
county  courts  [taking  effect  July  13,  1846;  repealed 
August  7,  1848].  Section  1.  Be  it  enacted  by  the  legis- 
lature of  the  state  of  Texas,  that  there  shall  be  in  each 
county  in  this  state,  an  inferior  court,  to  be  styled  the 
'County  court  of county,'  which  shall  be  com- 
posed of  one  chief  justice  and  four  commissioners,  who 
shall  be  styled  county  commissioners." 

if)7  Aldridge  v.   Mardoff,   32   Tex.   207. 

108  Gulf  etc.  By.  Co.  v.  Eambolt,  67  Tex.  657,  4  S.  W.  356. 

109  Post,   §§    729-731. 
no  Ante,  §   627. 

111  Thouvenin  v.  Eodrigues,  24  Tex.  478;  Webb  v.  Mallard,  27 
Tex.  83;  Missouri  Pac.  Ry.  Co.  v.  Parkliurst,  3  Tex.  App.  Civ.,  §  159. 

112  2  L.  T.  1640;  H.  D.  285. 


279    LAWS  CONCERNING  AUTHOEITY  OF  OFFICEES.    §§  658-660 

§  658.  Deputy  Clerk.iiS— "Section  5.  Be  it  further  en- 
acted, that  the  clerks  of  the  county  courts  shall  have 
power,  by  writing,  under  their  hand  and  seal,  to  appoint 
a  deputy,  for  whose  official  acts  they  shall  be  responsi- 
ble; and  such  appointment  shall  be  recorded  with  the 
county  records;  and  every  clerk  of  the  county  court, 
when  he  shall  vacate  his  office,  shall  deliver  over  to  his 
successor  in  office,  all  books,  papers,  records,  and  effects 
belonging  to  his  office;  and  any  clerk  who  shall  fail  or 
refuse  so  to  do,  shall  be  fined  in  a  sum  not  less  than 
fifty  nor  more  than  five  hundred  dollars,  to  be  recovered 
on  motion  of  the  chief  justice  of  the  county  in  the  dis- 
trict court,  such  clerk  having  three  days'  notice  of  such 
motion;  and  every  other  clerk  of  the  county  court  who 
shall  be  guilty  of  any  neglect  of  duty  or  misdemeanor 
in  office,  may  be  indicted  for  the  same  by  a  grand  jury 
in  the  district  court,  and  on  conviction  thereof  shall  be 
removed  from  office." 

§  659.  Seal."4_agg(.tiojj  j  g^  j^  further  enacted, 
that  every  county  court  shall  procure,  at  the  expense 
of  the  county,  a  seal,  whereon  shall    be   engraved    the 

words  'County  court,  — county,  Texas,'  which  seal 

shall  be  kept  in  the  clerk's  office,  and  shall  be  used  in 
the  authentication  of  all  official  acts  of  said  court  or  of 
said  chief  justice,  or  of  said  county  commissioners,  or 
of  said  clerk.  Until  such  seal  shall  be  procured,  pri- 
vate seals  may  be  used." 

§  660.  Two  County  Commissioners  to  Act  in  Absence  of 
Chief  Justice.!*-'— '^Section  D.  Be  it  further  enacted,  that 
the  chief  justice  and  any  two  of  the  county  commission- 
ers shall  form  a  quorum  for  the  transaction  of  business; 
and  whenever  the  office  of  chief  justice  is  vacant,  or 
whenever  the  chief  justice  is  absent  from  the  county,  or 
incapable  from  any  cause  to  hold  court,  any  three  of 

113  H.   D.   289. 

114  H.   D.   291. 

115  H.  D.   293. 


§§  661-663    LAWS  CONCEENING  AUTTIOKITY  OF  OFFICERS.    280 

the  ooimty  commissioners  shall  form  a  quorum  of  said 
court." 

§  661.  Laws  Repealed.!!*'— "Section  10.  Be  it  further 
enacted,  that  this  act  shall  take  effect  and  be  in  force 
from  and  after  the  second  Monday  in  July,  184fi,  and 
from  and  after  that  time  all  laws  and  parts  of  laws 
conflicting-  with  the  provisions  of  this  act,  be  and  the 
same  are  hereby  repealed." 

§  662.  Effect  of  Above  Act.— It  is  not  clear  that  chief 
justices  of  the  county  courts  were  not  still  ex-ofiflcio  no- 
taries public  after  the  passage  of  the  above  act.  The  act 
of  December  20,  1836,  entitled  "An  act  organizing  the 
inferior  courts,  and  defining  the  powers  and  jurisdic- 
tion of  the  same,"^*''  amended  January  26, 1839,***  em- 
braced several  distinct  subject  matters,  to  wit:  First,  the 
organization  of  the  county  court,  fixing  its  jurisdiction, 
its  officers  and  their  duties  as  officers  of  such  court; 
second,  the  organization  of  probate  courts;  third,  the 
office  of  notary  public,  with  its  powers ;  fourth,  the  reg- 
istration of  deeds;  fifth,  limitation  of  actions  for  land; 
sixth,  common-law  rules  of  evidence,  to  be  followed  in 
all  courts  of  the  republic. 

(Note. — The  above  law  is  not  objectionable  under  the 
constitution  of  1836,  on  account  of  containing  subjects 
not  expressed  in  the  title,  etc.)**^ 

§  663.  Idem — Repealed  by  Implication. — There  is  no  law 
directly  repealing  the  act  of  1836,  but  most  of  its  pro- 
visions have  been  repealed  by  implication;  not  by  one 
law  revising  the  whole  subject  matter  of  said  act,  and 
intended  as  a  substitute  for  it,  but  by  several  different 
acts,  each  being  a  substitute  for  a  part.  Part  of  it 
still  remains  in  force.     The  first  subject  matter  men- 

116  H.  D.   303. 

117  1  L.  T.  1208. 

118  Ante,   §   571. 

119  Post,  §§  666,  676. 


281         LAWS  CONOEENING  AUTHOEITY  OF  OVFICEES.       §  664 

tioned  above  is  evidently  repealed  by  aot  of  May  13, 
1846,  organizing  county  courts,^^**  it  being  a  substitute, 
however,  only  for  that  part  of  the  said  act  of  December 
20,  183G.  The  second  subject  matter  was  repealed  by 
act  of  May  11,  1846,  organizing  probate  courts. ^^^  The 
fourth  subject  matter  was  repealed  by  the  act  of  May 
12,  1846,^"  providing  for  the  registry  of  deeds.  The 
fifth  subject  matter  (limitations)  questionably  by  the 
act  of  limitations  of  February  5,  1841.*--*  The  sixth 
subject  matter  (common-law  rules  of  evidence)  has 
never  been  repealed/^^  The  third  subject  matter  (sec- 
tion 35  of  said  act  December  20,  1836)  provides  for  the 
oflSce  of  notary,  the  powers  and  duties  of  same,  and 
provides  that  the  chief  justices  of  the  county  courts 
shall  be  ex-officio  notaries  public.  The  act  which  might 
be  held  to  be  a  substitute  for  the  said  section  35  is  the 
act  of  May  13,  1846.*^^  This  act  provides  for  the  ap- 
pointment of  notaries,  and  their  powers  and  duties,  but 
does  not  purport  to  repeal  any  previous  law,  nor  is  it 
inconsistent  with  said  section  35,  which  makes  chief 
justices  of  the  county  courts  ex-offlcio  notaries  public, 
no  more  than  is  the  present  law  authorizing  notaries 
inconsistent  with  tlie  laAv  making  justices  of  the  peace 
ex-officio  notaries  public. 

§  664.  Idem — Statute  Revising  Subject  Matter  of  Former. — 
A  subsequent  statute  revising  the  subject  matter  of  a 
former,  and  intended  as  a  substitute  for  it,  although  it 
contains  no  express  words  to  that  effect,  will  operate 
a  repeal  of  the  former  to  the  extent  to  which  its  pro- 
visions are  supplied  or  repealed. ^'^     But  it  is  held  in 

120  2  L.  T.  1640. 

121  2  L.  T.  1614. 

122  2  L.  T.  1544. 

123  2  L.  T.  633;  Lambert  v.  Weir,  27  Tex.  364;  Horton  v.  Crawford. 
10  Tex.  390;  Christy  v.  Alford,  17  How.  604,  15  L.  ed.  256 

124  See  Eev.  Stats.  1895,  art.  2299;  P.  D.  3706. 

125  2  L.  T.  1649. 

126  Buse  V.  Bartlett,  1  Tex.  Civ.  App.  335,  21  S.  W.  54;  Stirman 
V.  State,  21  Tex.  736;  Bryan  v.  Sundberg,  5  Tex.  423;   Dickinson  v. 


§§  0G5,  666    LAAVS  CONCERNING  AUTHORITY  OF  OFFICERS.    282 

Herndon  v.  Eeed*^''  that  the  better  rule  is  that  unless 
there  is  a  positive  repugnance,  or  unless  the  statements 
are  irreconcilably  in  conflict,  or  an  intimation  of  in- 
tent to  repeal  is  expressed,  the  latter  does  not  repeal 
the  former. ^^* 

§  665.  Statute  Intended  as  Substitute  for  Former. — It  does 
not  appear  that  the  said  act  of  May  13,  1846,  organiz- 
ing county  courts*^'-*  was  intended  as  a  complete  substi- 
tute for  said  section  35,  making  chief  justices  of  the 
county  court  ex-officio  notaries  public,  nor  is  it  in  con- 
flict therewith,  as  it  makes  no  mention  of  the  office  of 
notary  public.  Again,  the  repealing  clause  of  the  said 
latter  act  organizing  county  courts  repeals  all  laws  and 
parts  of  laws  conflicting  with  the  provisions  of  same. 
And  it  is  held  that  "when  a  general  revising  act  ex- 
pressly repeals  all  inconsistent  acts  and  parts  of  acts, 
this  implies  that  if  there  are  parts  of  former  acts  not 
embraced  in  the  new  act  and  not  inconsistent  with  it, 
they  are  not  repealed. "^^** 

§  666.  A  Law  Shall  Embrace  but  One  Subject  Matter.— 
Again,  the  title  of  the  act  of  May  13,  1846,  is  "An  act 
organizing  county  courts."  Section  24,  article  7,  of  the 
constitution  of  1845,  in  force  at  that  time,  provided  that 
"every  law  enacted  by  the  legislature  shall  embrace 

State,  38  Tex.  Cr.  479,  41  S.  W.  760;  Coombs  v.  State,  38  Tex.  Cr. 
648,  44  S.  W.  858;  Carolan  v.  McDonald,  15  Tex.  329;  Tunstall  v. 
Wormley,  54  Tex.  481;  Taylor  v.  Hall,  71  Tex.  218,  9  S.  W.  141; 
State  V.  Travis  Co.,  85  Tex.  445,  21  S.  W.  1029;  Holden  v.  State,  1 
Tex.  App.  242;  St.  Louis  etc.  Ry.  Co.  v.  Kay,  85  Tex.  559,  22  S.  W. 
665;  Rogers  v.  Watrous,  8  Tex.  62,  58  Am.  Dec.  100;  and  Rose's 
Notes  under  same. 

127  82  Tex.  651,  18  S.  W.  665. 

128  See  notes  in  the  following  cases  where  the  question  is  more 
fully  briefed:  14  Am.  Dec.  209;  18  Am.  Dec.  542;  61  Am.  Dec.  337; 
82  Am.  Dec.  167;  86  Am.  Dec.  193;  12  Am.  St.  Rep.  695.  See,  also, 
ante,   §    622. 

129  2  L.  T.  1640. 

130  Buse  V.  Bartlett,  1  Tex.  Civ.  App.  340,  21  S.  W.  52-54;  Etter  v. 
Missouri  Pac.  Ry.,  2  Tex.  App.  Civ.  §   58. 


283    LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.    §§  667-669 

but  one  subject,  and  that  shall  be  expressed  in  the  title." 
It  seems  that  the  organization  of  county  courts,  and 
the  revocation  of  the  authority  of  county  judges  to  act 
as  notaries  public  might  be  two  objects,  one  of  which 
was  not  expressed  in  the  title  of  the  act,  as  the  duties 
of  notaries  are  in  no  way  connected  with  the  courts.  If 
this  is  the  case,  would  the  said  act  be  void  in  so  far  as 
it  might  attempt  to  revoke  the  authority  of  county 
judges  to  act  as  notaries  ?*^^  This  provision  of  the  con- 
stitution, however,  does  not  apply  to  repeals  by  impli- 
cation.*"^^ 

If  chief  justices  of  county  courts  w^re  authorized, 
were  county  commissioners  also  authorized  by  this 
act?*«» 

§  667.  Deputies. — Deputies  of  county  clerks  would,  by 
virtue  of  their  authorized  appointment,  have  authority 
to  take  acknowledgments  and  proof  under  the  same  con- 
ditions that  their  principals  would. *^^ 

§  668.  Act  of  March  16,  18481^^— Deputy  County  Clerks.— 
"Section  2.  That  in  all  cases  where  the  said  sheriff  and 
clerks  do  not  reside  at  the  county  seats  of  their  respec- 
tive counties,  they  shall  be,  and  are  hereby,  required  to 
have  deputies  in  their  several  offices,  residing  at  said 
county  seats." 

§  669.  Act  of  March  16,  1848  ^•■'«— County  Courts.— "An 
act  to  organize  county  courts   [taking  effect  Aug.  17, 

131  Byrnes  v.  Sampson,  74  Tex.  83,  11  S.  W.  1073;  also,  post,  § 
675.  But  see  Coombs  v.  State,  38  Tex.  Cr.  648,  44  S.  W.  858,  and 
ante,   §    622. 

132  Clark  V.  Finley,  93  Tex.  171,  54  S.  W.  343;  Davis  v.  State,  7 
Md.  151,  61  Am.  Dec.  331. 

133  Post,  §§   675-679. 

134  Rose  V.  Newman,  26  Tex.  135,  80  Am.  Dec.  646;  Cook  v.  Knott, 
28  Tex.  90;  Frizzell  v.  .Tohnson,  30  Tex.  32;  Chicago  etc.  Ey.  v. 
Tittorington,  84  Tex.  219,  31  Am.  St.  Rep.  39,  19  S.  W.  472;  Wert 
V.   Schneider,   64   Tex.   327. 

135  3  L.  T.  ]28;  H.  D.  305. 

136  3  L.  T.  113;  H.  D.  307. 


§§  670-672   LAWS  CONCERNING  AUTHORITY  OF  OFPICERS.    284 

1848].  Section  1.  Be  it  enacted  by  the  legislature 
of  the  state  of  Texas,  that  there  shall  be  in  each  county 
of  this  state  an  inferior  court  to  be  styled  ^The  county 
court/  which  shall  be  composed  of  one  chief  justice." 

§  670.  Deputy  County  Clerks. ^»''— "Section  16.  That 
the  clerks  of  the  several  county  courts  of  this  state  shall 
have  power,  by  writing,  under  their  hand  and  seal,  to 
aj^point  a  deputy,  for  whose  official  acts  they  shall  be 
responsible;  and  such  deputy  shall  take  and  subscribe 
the  oath  of  office  prescribed  by  the  constitution,  before 
some  officer  authorized  to  administer  oaths,  which  shall 
be  indorsed  on  or  attached  to  the  appointment,  to- 
gether with  the  certificate  of  the  officer  who  adminis- 
tered the  sahie;  and  such  appointment  and  oath  shall 
be  recorded  with  the  county  records,  and  deposited  with 
the  clerk  of  the  district  court  of  the  county." 

§  671.  Clerk  "Pro  Teiri."i3s_ugg(.^iQj^  yj  rpj^^t  if 
from  any  cause  the  clerk  of  the  county  court  is  absent 
from  the  county  seat,  or  is  unable  or  unwilling  to  at- 
tend to  the  duties  of  his  office,  and  he  has  no  deputy,  or 
if  any  duties  are  required  to  be  done  in  the  office  of  said 
clerk,  before  an  election  can  be  had  to  fill  a  vacancy,  the 
chief  justice  may,  by  an  order  entered  on  the  minutes 
of  the  court,  either  in  vacation  or  term  time,  appoint 
a  clerk  pro  tem  for  said  court ;  and  any  person  appointed 
shall  take  the  oath,  and  give  bond  in  like  manner  as 
herein  provided  for  clerks  who  are  elected;  but  such 
appointment  shall  in  no  case  continue  in  force  for  more 
than  thirty  days." 

§  672.  Two  County  Commissioners  to  Act.^^^ — "Section 
23.  That  during  any  vacancy  in  the  office  of  chief  jus- 
tice, any  two  of  the  county  commissioners  shall  have 
power  to  hold  all  such  courts,  as  the  chief  justice  can 

137  H.  D.   322. 

138  H.  D.   323. 

139  H.    D.    329. 


285    LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    §§  673-675 

hold ;  and  to  do  and  perform  all  such  official  acts  as  he 
can  do  and  perform." 

§  673.  Certificates.— "Section  26.  That  the  chief  jus- 
tices, county  commissioners,  clerks  of  the  county  courts, 
and  their  deputies,  shall  have  power  to  administer  oaths 
of  office,  and  all  other  oaths  and  affirmations,  and  give 
certificates  thereof." 

§  674.  Chief  Justices  Take  Acknowledgments  of  Married 
Women.i-*o_"Section  26.  That  the  chief  justice  of  the 
county  court  shall  have  power  to  take  acknowledgment 
and  proof  of  all  instruments  of  writing  for  the  purpose 
of  being  recorded,  and  they  shall  also  have  power  to 
examine  and  take  the  acknowledgment  of  married 
tvomeri  to  all  deeds  of  their  separate  property,  and  all 
deeds  to  property  for  the  sale  of  which  their  consent  is 
required,  in  like  manner  and  under  the  same  rules  and 
regulations  as  are  provided  for  notaries  public:  and  all 
acts  so  done  by  the  chief  justice  of  a  county  court  in 
this  state,  shall  have  the  same  force  and  effect  as  if 
done  by  a  notary  public." 

Section  29  rept^als  act  of  May  13,  1846. 

§  675.  Effect  of  Above  Act.— To  the  officers  authorized 
under  the  act  of  ^May  12,  1846,  to  take  acknowledgments 
and  proof,  to  wit,  notaries  public  and  county  clerks, 
and  under  the  act  of  April  30, 1846,  to  take  acknowledg- 
ments of  married  women,  to  wit,  judges  of  supreme  and 
district  courts  and  notaries  public,  this  act  (March  16, 
1848)  added  chief  justices  of  county  court,  and  during 
any  vacancy  in  the  office  of  the  chief  justice  of  county 
court,  any  two  county  commissioners.  It  repeals  the  act 
of  May  13,  1846  (entitled  "An  act  organizing  county 
courts")  authorizing  county  clerks  to  appoint  deputies; 
but  section  26  of  this  act  (March  16,  1848)  still  author- 
ized the  appointment  of  deputies. 

140   P.  D.  2.52;  H.  D.  2801. 


§§  676-678    LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.    286 

§  676.  Its  Constitutionality. — It  is  questionable  whether 
or  not  this  act  (March  16,  1848),  in  so  far  as  it  author- 
ized acknnwledQ;ments  by  chief  justices  of  county  courts, 
was  constitutional.  Section  24,  article  7,  of  the  con- 
stitution of  1845  (and  all  constitutions  since,  though 
not  the  constitution  of  1836),  provided  that  "Every  law 
enacted  by  the  legislature  shall  embrace  but  one  ob- 
ject, and  that  shall  be  expressed  in  the  title."  Does 
the  title  of  the  act,  "An  act  organizing  county  courts," 
sufficiently  indicate  that  the  duties  of  county  judges 
shall  include  the  taking  of  acknowledgments,  they  not 
being  in  any  way  connected  with  proceedings  in 
court  ?^** 

§  677.  Object  of  Act  Must  be  Single. — It  is  held  that 
an  act  entitled  "An  act  to  regulate  proceedings  of  the 
district  court"  was  void  in  so  far  as  it  attempted  to 
regulate  proceedings  in  the  supreme  court.  The  court 
saying:  "The  object  of  this  act  is  single  and  is  expressed 
in  the  title,  and  its  provisions  cannot  be  construed  to 
regulate  proceedings  in  any  other  than  the  district 
courts."  And  this  provision  of  the  constitution  is  man- 
datory.^*^    It  should  be  liberally  congtrued.**^ 

§  678.  Are  Chief  Justices  Authorized  to  Take  Acknowledg- 
ments of  Married  Women? — It  seems  that  by  the  terms  of 
this  act  a  chief  justice  of  the  county  court,  besides  be- 
ing authorized  to  take  acknowledgments,  would  be  ex- 
officio  notary  public.  While  the  question  as  to  the  au- 
thority of  the  chief  justice  of  the  county  court  to  take 
a  married  woman's  acknowledgment  is  not  raised  in  the 
case  of  Belcher  v.  Weaver,^'**  the  court  holds  the  ac- 
knowledgment taken  by  him  is  valid. 

141  See   ante,   §   666. 

142  Cannon  v.  Hemphill,  7  Tex.  208;  Byrnes  v.  Sampson,  74  Tex." 
83,  11  S.  W.  1073;  Parker  v.  Parker,  10  Tex.  86;  Breen  v.  Texas  etc. 
Ey.  Co.,  44  Tex.  306;  Giddings  v.  Antonia,  47  Tex.  556,  26  Am. 
Eep.  321;  Morris  v.  State,  62  Tex.  741;  Ex  parte  Fagg,  38  Tex. 
Cr.  App.  573,  44  S.  W.  294,  40  L.  E.  A.  212. 

143  For  brief,  see  Davis  v.  State,  61  Am.  Dee.  337,  note. 

144  46  Tex.  295,  26  Am.  Eep.  267. 


287    LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.    §§679-681 

§  679.  Authority  as  Ex-officio  Notary. — Again,  if  the 
above  act  does  not  confer  the  authority  on  chief  jus- 
tices of  the  county  courts,  it  is  doubtful  if  they  did  not 
still  have  that  authority  as  ex-officio  notaries  public.**^ 
This  act  repealed  the  acts  of  December  20,  1836,  Jan- 
uary 26,  1839,  and  May  13,  1846,  organizing  county 
courts;  the  first  two  by  implication,  the  last  by  direct 
provision. ^4*^  And  while  the  act  of  March  16,  1848,  at- 
tempts to  continue  to  make  chief  justices  of  the  county 
court  ex-officio  notaries  public,  as  this  is  not  expressed 
in  the  title,  there  is  some  doubt  as  to  whether  or  not  this 
part  of  the  statute  is  operative.  As  it  is  a  virtual  re- 
enactment  of  the  substance  of  the  old  provisions,  it 
seems  that  it  might  be  operative.^*'' 

§  680.  Were  Clerks  "Pro  Tern"  Authorized? — It  is  not 
clear  whether  or  not  a  "pro  tern"  clerk  was  authorized 
by  this  act  to  take  acknowledgments. 

§  681.  Act  of  December  18,  1849'^*— County  Clerks  to 
Take  Acknowledgments. — "An  act  to  authorize  the  several 
clerks  of  the  county  courts  in  the  state  of  Texas  to  take 
the  separate  acknowledgment  of  married  women  to 
deeds  executed  by  them  [took  effect  from  passage].  Be 
it  enacted  by  the  legislature  of  the  state  of  Texas,  that 
the  several  clerks  of  the  county  courts  be,  and  they  are 
hereby  autliorized  to  take  the  separate  acknowledgment 
of  deeds  executed  by  married  women,  under  the  same 
rules  and  regulations  as  are  prescribed  for  judges  of  the 
supreme  or  district  courts,  or  notaries  public,  in  an 
act  entitled  'An  act  defining  the  mode  of  conveying 
property  in  which  the  wife  has  an  interest,'  approved 
April  30,  1846." 

145  Ante,  §§  662-664. 

146  Bryan  v.  Sundberg,  5  Tex.  42.3;  Stirman  v.  State,  21  Tex. 
736;  Fayette  Co.  v.  Faires,  44  Tex.  514;  ante,  §§  623-625. 

147  Ennis  v.  Crump,  6  Tex.  35. 

148  3  L.  T.  449;  H.  D.  178. 


§§  682-684   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    288 

^  682.  Act  of  December  29,  1849^49  (Taking  Effect  from 
Passag-e) — County  Commissioners  to  Perform  Duties  of  Chief 
Justice. — ''1.  Be  it  euacted  by  the  legislature  of  the 
state  of  Texas,  that  whenever  the  office  of  chief  justice 
of  any  county  court  in  this  state  is  vacant,  or  whenever 
the  chief  justice  of  any  county  court  in  this  state  shall 
be  absent  from  the  county,  or  unable  to  discharge  the 
duties  of  his  office,  or  shall  be  disqualified  from  attend- 
ing to  the  duties  of  his  office,  by  reason  of  interest,  or 
from  any  other  cause,  then  any  two  of  the  county  com- 
missioners of  such  county  shall  have  power  to  do  and 
perform  all  the  duties  of  chief  justice  of  the  county 
court." 

§  683.  Act  of  February  9,  1856i5<>— Deputy  Clerks.— "An 
act  more  particularly  declaring  the  duties  of  deputy 
clerks.  Section  2.  Be  it  further  enacted,  that  the  dep- 
uties regularly  appointed  by  the  several  clerks  of  the 
county  courts  of  this  state,  have  power  to  take  the  sep- 
arate acknowledgments  of  married  women,  acknowledg- 
ing the  execution  of  deeds  and  other  instruments  of 
conveyance,  executed  by  them,  in  the  same  manner  as 
the  same  may  be  taken  by  said  principal  clerks,  and 
that  such  deputy  clerks  have  power  to  take  proof  of  the 
execution  of  all  deeds,  mortgages  and  other  instruments 
of  writing  that  are^  by  law  required  or  allowed  to  be 
recorded.  And  to  take  the  acknowledgments  of  the 
persons  executing  such  deeds,  mortgages,  and  other  in- 
struments of  writing,  and  to  do  and  perform  all  other 
acts  required  to  be  done  by  said  principal  clerks.  And 
that  all  such  acts  heretofore  done  by  such  deputy  clerks 
are  hereby  declared  to  be  as  valid  as  if  done  by  said 
principal  clerks.  And  that  this  act  take  effect  and  be 
in  force  from  and  after  its  passage." 

§  684.     Act  of  February  9,  18601^1— Validates.— "Section 
2.     Any  grant,  deed  or  other  instrument  of  writing  for 

149  3  L.  T.  459;  H.  D.  336. 

150  4  L.  T.  262. 

151  4  L.  T.  1437;  Rev.  Stats.  1895,  art.  4666;  P.  D.  5021. 


289         LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.       §  685 

the  conveyance  of  real  estate  or  personal  property,  or 
both,  or  for  the  settlement  thereof  in  marriage,  or  sep- 
arate property,  or  conveyance  of  the  same  in  mortgage, 
or  trust  to  uses,  or  in  conditions,  as  well  as  any  or 
every  other  deed  or  instrument  required  or  permitted 
by  law  to  be  registered,  and  which  shall  have  been  prior 
to  the  ninth  day  of  February,  1860,  registered  or  re- 
corded, shall  be  held  to  have  been  lawfully  registered, 
with  the  full  effect  and  consequences  of  existing  laws; 
provided  the  same  shall  have  been  acknowledged  by  the 
grantor  or  grantors  before  any  chief  justice,  or  asso^ 
ciate  justice,  or  clerk  of  the  county  court,  or  notary 
public  in  any  county  within  the  late  republic  or  the 
now  state  of  Texas,  or  judge  of  the  department  of  Bra- 
zos, or  any  primary  judge  or  judge  of  the  first  instance 
in  1835  or  1836,  or  proven  before  any  such  olficer  by 
one  or  more  of  the  subscribing  witnesses  thereto,  and 
certified  by  such  officer;  whether  such  acknowledgment 
or  proof  shall  have  been  made  before  any  such  ofidcer  of 
the  county  where  such  instrument  should  have  been 
recorded  or  not."^^^ 

§  685.  Authenticated  as  Above  and  Afterward  Recorded.*^* 
"Section  3.  All  such  instruments  which  shall  have 
been  acknowledged  or  proven  before  any  officer  named 
in  the  preceding  article,  and  shall  have  been  afterward 
recorded  in  the  proper  county,  or  certified  copies  thereof, 
shall  be  evidence  in  the  courts,  as  full  and  sufficient  as 
if  such  acknowledgment  had  been  taken  or  proof  made 
in  accordance  with  existing  laws;  but  this  article  and 
the  article  preceding  shall  not  be  construed  so  as  to 
effect  or  bind,  in  any  manner,  any  person  or  party  with 
constructive  notice  of  the  existence  of  any  deed  or  othei 
instrument  of  writing  as  a  recorded  deed  or  instrument 
except  in  the  future,  and  after  the  taking  effect  of  this 
act,  unless  such  pei*son  or  party  would  have  been  so 

152  Post,  §§  1032-1037. 

IRS  Rev.  Stats.  1895,  art.  4667;  P.  D.  5022. 
19 


§§  6S6,  6S7    LAWS  CONCEENING  AUTIIOKITY  OF  OFFICERS.     290 

affected,  or  boniul  with  snc-li  notice,  had  this  act  never 
been  passed. "^^* 

§  686.  Act  of  April  6,  1861^  "•"•—Officers  Authorized.— '^Vn 
act  prescribiui;-  the  manner  of  authenticating'  instru- 
ments for  record  [taking  effect  from  passage].  Sec- 
tion 1.  Be  it  enacted  by  the  Legislature  of  the  State  of 
Texas,  That  the  proof  of  every  instrument  of  writing 
for  record  shall  be  by  some  one  of  the  following  oflflcers : 
First,  when  acknowledged  or  proven  within  the  State 
before  some  Notary  Public,  Clerk  of  the  County  Court, 
or  Judge  of  a  Court  of  Record;  second,  when  acknowl- 
edged or  proven  without  this  State,  and  within  the  Con- 
federate States  of  America,  or  their  territories,  or  the 
United  States  or  their  territories,  before  some  Judge 
of  a,  Court  of  Record  having  a  seal ;  third,  when  acknowl- 
edged or  proven  without  the  United  States,  or  Confed- 
erate States,  before  some  public  Minister,  Charge  d'Af- 
faires,  or  Consul  of  the  Confederate  States.  And  in  all 
cases  the  certificate  of  such  acknowledgment  or  proof 
shall  be  attested  under  the  official  seal  of  the  officer 
taking  the  same.  That  when  any  deed,  transfer  or 
other  instrument  of  writing  executed  by  the  president 
of  any  railroad  company,  which  has  or  may  be  incor- 
porated by  the  laws  of  this  state,  shall  be  attested  by 
the  seal  of  said  company,  it  shall  be  considered  suffi- 
ciently authenticated  to  authorize  the  Clerk  of  the 
County  Court  to  record  the  same. 

"Section  2.  That  the  provisions  of  all  law^s  so  far 
as  they  can  conflict  with  this  act  be  and  they  are  hereby 
repealed. 

"Section  3.  That  this  act  take  effect  and  be  in  force 
from  and  after  its  passage." 

§  687.  Effect  of  Above  Act. — This  act  repealed  the  au- 
thority of  all  officers  authorized    by    previous    general 

154  As  to  effect,  see  post,  §§  1032-1037. 

155  5   L.   T.   373. 


291         LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.       §  688 

acts,^^*'  but  probably  not  the  special  acts  such  as  the 
act  of  May  8,  1846,  authorizing-  commissioners  of 
deeds. ^^'^  While  the  question  as  to  the  authority  of 
commissioners  to  act  during  the  year  1868  was  not 
raised  nor  discussed  in  the  case  of  Davis  y.  Rooseyelt^^* 
the  court  said  that  "the  law  in  force  in  1868  did  not  re- 
quire a  commissioner  of  deeds  for  another  state  to  pro- 
vide himself  with  a  seal,"  etc.  In  another  case,  it  was 
held  that  a  commissioner  once  appointed  under  this 
act  would  be  perpetually  qualified  until  recalled  by  a 
governor  of  Texas. *^®  Again,  a  general  law  will  not 
repeal  a  special  law  on  the  same  subject.^®**  Laws 
passed  during  secession  were  valid.*^* 

^  688.  Act  of  January  14,  1862i«2_officers  Authorized— 
Validates. — "An  act  supplemental  and  amendatory  of  an 
act  entitled  'An  act  prescribing  the  manner  of  authen- 
ticating instruments  for  record,'  approved  April  6,  1861 
[took  effect  from  passage].  The  proof  of  every  instru- 
ment of  writing  for  record,  shall  be  taken  by  some  one 
of  the  following  ofiicers:  First,  when  acknowledged  or 
proven  within  the  State  before  some  Xotary  Public, 
Clerk  of  the  County  Court,  or  his  deputy,  or  Judge  of  a 
Court  of  Record ;  when  acknowledged  or  proven  without 
this  State  and  within  the  Confederate  States  of  America, 
or  their  Territories,  or  the  United  States  of  America,  or 
their  Territories,  before  some  Judge  of  a  Court  of  Record 
having  a  seal;  tliird,  when  acknowledged  or  proven 
"wdthout  the  Confederate  States  or  United  States  be- 
fore some  public  minister.  Charge  d'Affaires,  or  Consul 
of  the  Confederate  States;  and  in  all  cases  the  certifl- 

156  Hernrlon   v.    Reed,    82    Tex.    6.51,    18    S.   W.   66.5;    McCelvey   v. 
Cryer  (Tex.  Civ.  App.),  28  S.  W.  691;  ante,  §§  622-625,  648. 

157  Post,   §    729. 

158  53  Tex.  314. 

159  Thorn  v.  Frazer,  60  Tex.  261. 

160  Monroe  v.   Arledge,  23  Tex.  481;   Ellis  v.  Batts,  26  Tex.   704; 
City  of  Laredo  v.  Martin,  52  Tex.  562;  ante,  §§  622-625. 

161  Post,    §    884. 

162  5  L.  T.  501;  P.  D.  5024. 


§§  689-691    LAWS  CONCEENING  AUTHORITY  OF  OFFICERS.    292 

cate  of  acknowledgment,  or  proof,  shall  be  attested  nn 
der  the  official  seal  of  the  officer  taking  the  same;  that 
when  any  deed,  transfer,  or  other  instrument  of  writ- 
ing, executed  by  the  president  of  any  railroad  company 
which  has  been  or  may  be  incorporated  by  the  laws  of 
this  State,  shall  be  attested  by  the  seal  of  said  company ; 
it  shall  be  considered  sufficiently  authenticated  to  au- 
thorize the  Clerk  of  the  County  Court  to  record  the 
same." 

Validates. — ^(2)  All  acts  of  deputy  county  clerks  in 
taking  acknowledgments  or  proofs  of  instruments  of 
writing  for  record,  since  the  passage  of  the  act  of  April 
6,  1861,  are  hereby  made  valid. 

Repeals.— P.  D.,  art.  5025.  The  provisions  of  all 
laws,  so  far  as  they  conflict  with  this  act,  be,  and  they 
are  hereby,  repealed. 

§  689.  Constitution  of  ISGe^^*^— County  Court  Provided 
for.— The  constitution  of  1866,  ratified  on  first  Monday 
in  June,  1866,  provided  for  a  court  in  each  county, 
styled  the  "County  Court,"  the  judge  of  which  shall  be 
elected  by  the  people. 

§  690.  Act  of  October  25,  1866i64_county  Courts  Provided. 
The  act  of  October  25,  1866,  taking  effect  December  31, 
1866,  repealed  by  implication  the  previous  acts  making 
county  judges  ex-officio  notaries  public,  but  not  the  acts 
expressly  authorizing  them  to  take  acknowledgments.^®^ 
It  comprehends  the  whole  subject  matter  of  the  organ- 
ization of  county  courts,  and  consequently,  by  implica- 
tion, repeals  previous  laws  organizing  same.^*^^^  This 
was  a  valid  law.*®'^ 

§  691.  Act  of  November  13,  1866i68_oflacers  Authorized. 
"An  act  to  amend  the  eleventh  section  of  an  act  to  pro- 

163  5  L.  T.  868. 

164  5   L.   T.   961. 

165  Post,    §    884. 

166  Ante,  §§  633,  624. 

167  Post,    §    884. 

168  5  L.  T.  1128. 


293         LAWS  CONCEBNING  AUTHORITY  OF  OFFICEES.       §  692 

vide  for  the  registry  of  deeds,  and  other  instruments  in 
writing,  approved  May  12,  1846.  Section  1.  Be  it  en- 
acted by  the  legislature  of  the  state  of  Texas,  that  sec- 
tion eleven  of  the  above  recited  act,  be  so  amended  that 
it  will  hereafter  read  as  follows:  Proof,  or  acknowledg- 
ment of  every  instrument  of  writing  for  record,  shall 
be  taken  by  some  one  of  the  following  officers:  First, 
When  acknowledged,  or  proven  within  the  State,  be- 
fore some  Notary  Public,  or  Clerk  of  the  County  Court 
of  any  County  in  the  State.  Second,  When  acknowl- 
edged, or  proven  without  this  State,  and  within  the 
United  States,  or  their  Territories,  before  some  Judge 
or  Clerk  of  a  Court  of  Record  having  a  seal.  Third, 
When  acknowledged  or  proven  without  the  United 
States  before  some  Public  Minister,  Charge  d'Affaires, 
or  Consul  of  the  United  States,  and  in  all  cases  the  cer- 
tificate of  such  acknowledgment  shall  be  attested  under 
the  official  seal  of  the  officer  taking  the  same." 

§  692.  Validity  of  Above  Act — Amendment  of  Repealed 
Statute. — This  purports  to  amend  section  11  of  act  of 
March  12,  1846,  which  was  repealed  by  the  act  of  April 
6,  1861.  In  this  state  it  seems  not  to  have  been  decided 
whether  or  not  the  amendment  of  a  repealed  statute  is 
valid,  and  the  decisions  of  other  states  are  at  variance. 
The  difference  may  arise  from  the  effect  of  their  differ- 
ent constitutions.  In  Herndon  v.  Reed,  82  Tex.  650, 
while  the  above  question  was  not  raised,  the  court 
treated  the  amendment  of  said  section  11  of  said  act 
of  May  12,  1846,  as  valid.^*^'^  In  New  York,  a  statute 
purporting  to  amend  a  repealed  statute  "so  as  to  read 
as  follows"  is  operative  without  regard  to  the  former 
statute.*'^®  The  legislature  may  amend  an  original  act 
which  has  been  amended  and  repealed,  disregarding  the 

169  See,  also,  Quinlan  v.  Houston  etc.  Ry.  Co.,  89  Tex.  356,  34  S.  W. 
738. 

170  Van  Cliff  v.  Van  Vichten,  55  Hun,  467,  8  N.  Y.  Supp.  760; 
People  V.  Board  of  County  Commissioners,  77  Hun,  372,  28  N.  Y. 
Supp.   871. 


§  693      LAWS  CONCERNING  AUTHOETTY  OF  OFFICEES.         294 

amendatory  and  repealing;  aet^^^  Act  of  March  22, 
1890,  enacting-  that  a  bill  of  exceptions  may  be  made  a 
part  of  the  record,  "as  provided  by  chapter  19  of  the 
code,"  and  repealing  the  act  of  February  3,  1886,  which 
changed  chapter  19,  indicates  an  intention  on  the  part 
of  the  legislature  to  revive  chapter  19.*''^  On  the  other 
hand,  it  is  held  that  the  amendment  of  an  unconstitu- 
tional act  is  void.*''^  And  under  the  Indiana  consti- 
tution an  amendment  must  be  of  some  existing  statute, 
and  a  statute  which  purports  to  amend  a  section  already 
amended  or  repealed,  is  void.^''*  The  same  rule  is  held 
in  lUinois,^''^  in  Massachusetts,^''^  and  in  Nebraska.*'"'' 

§  693.  Constitution  of  1869^''*— (Ratified  on  First  Monday 
in  July,  1869)— District  and  County  Clerks.— "Section  9.  A 
clerk  of  the  district  court  for  each  county  shall  be 
elected  by  the  qualified  electors  in  each  county,  who 
shall  hold  his  office  for  four  years,  subject  to  removal  by 
the  judge  of  said  court  for  cause,  spread  upon  the  min- 
utes of  the  court.  The  said  clerk  shall  exercise  such 
powers,  and  perform  such  duties,  appertaining  to  the 
estates  of  deceased  persons,  lunatics,  idiots,  minors  and 
persons  of  unsound  mind,  in  vacation  as  may  be  pre- 
scribed by  law;  provided,  that  all  contested  issues  of 
law  or  fact  shall  be  determined  by  the  district  court. 
And  the  clerk  of  the  district  court  shall  be  recorder  for 
the  county  of  all  deeds,  bonds  and  other  instruments 
required  by  law  to  be  recorded,  and  also  ex-officio  clerk 
of  the  police  or  county  court;  and  by  virtue  of  his  office 

171  Harper  v.  State,  109  Ala.  89,  19  South.  857. 

172  Emigh  V.  State  Ins.  Co.,  3  Wash.  122,  27  Pae.  106.3. 

173  Cowley  V.  Town  of  Eushville,  60  Ind.  327.  See  Mitchell  v. 
State,  19  Ind.  381. 

174  Blackmore  v.  Dolan,  50  Ind.  194. 

175  Louisville  etc.  Ey.  Co.  v.  City  of  East  St.  Louis,  134  111.  656, 
25  N.  E.  962. 

176  Commonwealth  v.  Kenneson,  143  Mass.  418,  9  N.  E.  761. 

177  State  V.  Benton,  33  Neb.  8.34,  51  N.  W.  144.  And  see  post, 
§  884. 

178  7  L.  T.  412. 


295   LAWS  CONCERNING  AUTHOEITY  OF  OFFICERS.    §§  694,695 

shall  liave  control  of  the  records,  papers,  and  books  of 
the  district  and  county  or  police  court,  and  shall  gen- 
erally perform  the  duties  heretofore  required  of  county 
and  district  clerks." 

§  694.  Idem — Justices  of  Peace  Commissioned  Notaries. — 
"Section  20.  Justices  of  the  peace  shall  have  such  civil 
and  criminal  jurisdiction  as  shall  be  provided  by  law. 
And  the  justices  of  the  peace  in  each  county,  or  any 
three  of  them  shall,  constitute  a  court  having  such  ju- 
risdiction, similar  to  that  heretofore  exercised  by 
county  commissioners  and  police  courts,  as  may  be  pre- 
scril)ed  by  law.  And  when  sitting  as  such  court,  the 
justice  who  resides  at  the  county  seat  shall  be  the  pre- 
siding justice.  The  times  and  manner  of  holding  said 
courts  shall  be  prescribed  by  law.  Justices  of  the  peace 
shall  also  be  commissioned  to  act  as  notaries  public. 
Justices  of  the  peace  shall  also  discharge  all  the  duties 
of  coroner,  except  such  as  by  section  twenty-one  of  this 
article  are  devolved  upon  constables." 

§  695.  Act  of  August  8,  ISTOi'**— Officers  Authorized.— 
"An  act  authorizing  clerks  of  the  district  courts,  their 
deputies  and  notaries  public,  to  take  acknowledgments 
of  deeds  and  other  written  instruments  [taking  effect 
from  passage].  Section  1.  Be  it  enacted  by  the  legis- 
lature of  the  State  of  Texas,  That  clerks  of  the  District 
Courts,  their  deputies  and  notaries  public,  are  hereby 
authorized  and  empowered  to  take  the  acknowledgment 
of  deeds  and  other  written  instruments  required  by  law 
to  1)6  recorded  in  this  State,  and  the  certificate  of  any 
such  officer  over  his  official  signature  and  seal  of  office 
that  such  instrument  has  been  so  acknowledged  shall 
entitle  the  same  to  registration. 

"Section  2.  That  all  laws  in  conflict  herewith  are 
hereby  repealed,  and  that  this  act  shall  take  effect  from 
and  after  its  passage." 

17»  6   L.   T.   223. 


§§  696-700    LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    296 

§  696.  Not  Repealed. — This  act  was  not  repealed  by 
act  of  May  0,  ISTl.'^^^ 

^  697.  Act  of  August  13,  1870.^'^*— "An  act  to  organize 
justice  courts  and  connty  courts.  Section  16.  Justices 
of  the  peace  shall  be  commissioned  by  the  governor  to 
act  as  justices  of  the  peace,  in  their  respective  pre- 
cincts, and  also  to  act  as  notaries  public.  They  shall 
also  be  authorized  to  take  the  acknowledgment  of  deeds 
and  other  instruments  required  by  law  to  be  recorded 
and  certify  the  same  for  record.  This  act  shall  take 
effect  from  passage." 

§  698.  Deputy  Justices  of  the  Peace  Authorized. — "Section 
29.  It  shall  be  lawful  for  justices  of  the  peace  to  ap- 
point deputies  to  transact  business  and  to  sign  their 
name  to  any  documents  pertaining  to  their  business, 
either  as  justices  or  notaries  public ;  provided,  however, 
that  such  deputies  shall  not  sit  in  the  trial  of  cases." 

§  699.  County  Court.— "Section  32.  The  county  courts 
of  this  state  shall  be  composed  of  the  five  justices  of  the 
peace,  or  any  three  of  them  elected  in  each  county,  who 
shall  discharge  the  duties  when  sitting  as  such  court, 
as  were  heretofore  discharged  by  the  county  commission- 
ers and  county  courts  of  this  state;  and  when  sitting 
as  such  courts,  the  justices  residing  at  the  county  seats 
of  their  respective  counties  shall  be  the  presiding  jus- 
tices thereof." 

§  700.  Repealed  When. — Section  29  was  repealed  April 
4,  1871.  ^'^^  The  remainder  of  the  above  act  was  no 
doubt  repealed  by  the  act  of  June  16,  1876,  in  so  far  as 
it  applied  to  county  courts,^*'^  and  by  the  act  of  August 
17,  1876,  as  to  justices'  courts.*** 

180  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665. 

181  6  L.  T.  278. 

182  6  L.  T.  1038. 

183  8  L.  T.  853;  and  ante,  §§  622-625. 

184  8  L.  T.  990. 


297   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    §§  701-703 

§  701.  Act  of  August  13,  1870.is5_a^jj  ^^^  ^^  validate 
certain  official  acts  of  county  judges  [taking  effect 
from  passage].  Section  1.  Be  it  enacted  by  the  legis- 
lature of  the  state  of  Texas,  that  every  grant,  deed,  mort- 
gage, deed  of  trust,  power  of  attorney,  or  other  instru- 
ments required  or  permitted  by  law  to  be  registered, 
that  shall  have  been  heretofore  acknowledged  by  the 
grantor  or  grantors,  maker  or  makers,  before  any  county 
judge  of  any  county  in  this  state,  or  proven  before  such 
officer,  by  one  or  more  of  the  subscribing  witnesses,  and 
certified  by  such  officer  be  held  to  have  been  duly  ac- 
knowledged or  proved,  with  the  full  effects  and  conse- 
quences of  existing  laws." 

§  702.  Validates.— "Section  2.  Be  it  further  enacted, 
that  every  such  instrument  required  or  permitted  by 
law  to  be  registered,  which  shall  have  been  acknowl- 
edged or  proven  before  such  county  judge,  and  which 
shall  have  been  heretofore  registered,  shall  be  held  to 
have  been  duly  registered ;  and  all  depositions  taken  be- 
fore a  county  judge  shall  be  as  valid  as  if  taken  before 
an  officer  authorized  to  take  depositions. 

"Section  3.  Be  it  further  enacted,  that  this  act  take 
effect  and  be  in  force  from  and  after  its  passage." 

This  does  not  cover  the  period  from  August  13,  1870, 
to  September  1,  1879. 

§  703.  Act  of  May  6,  1 871  ^^<^— Officers  Authorized.— "An 
act  to  further  amend  the  eleventh  section  of  'an  act  to 
provide  for  the  registration  of  deeds  and  other  instru- 
ments of  writing,'  approved  May  12,  1846  [taking  ef- 
fect from  passage].  Section  1.  Be  it  enacted  by  the 
legislature  of  the  state  of  Texas,  that  section  11  of  the 
above  recited  act  be  so  amended  that  it  will  hereafter 
read  as  follows :  Proof  or  acknowledgment  of  every  in- 
strument of  writing  for  record  may  be  taken  before 
some  one  of  the  following  officers;  first,  when  acknowl- 

185  6  L.  T.  251. 
180  6  L.  T.  979. 


§§  704,  705   LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.   298 

edood  or  proven  within  the  state,  before  some  notary 
pnblic,  district  cderk,  or  jnds^e  of  the  supreme  or 
district  court  in  tlie  state;  second,  when  acknowledged 
or  proven  without  the  state,  and  within  the  United 
States  or  their  territories,  before  some  notary  public, 
commissioner  of  deeds  for  this  state,  or  before  some 
judoe  or  clerk  of  a  court  of  record  having  a  seal ;  third, 
when  acknowledged  or  proven  without  the  United  States 
before  some  public  minister,  charge  d'affaires,  or  consul 
or  consular  agent,  agent  of  the  United  States,  or  notary 
public,  and  in  all  cases  the  certificate  of  such  acknowl- 
edgment or  proof,  shall  be  attested  under  the  official 
seal  of  the  officer  taking  the  same." 

This  does  not  repeal  act  of  August  8, 1870.*®'' 

^  704.  Act  of  May  31,  1871  iss_itepeals  Authority  of  Jus- 
tices of  Peace. — "An  act  to  repeal  section  twenty-nine  of 
'an  act  to  organize  the  court  of  justices  of  the  peace, 
and  county  courts,  and  to  define  their  jurisdiction  and 
duties,'  approved  August  13,  1870  [taking  effect  from 
passage].  Section  1.  Be  it  enacted  by  the  legislature 
of  the  state  of  Texas,  that  section  twenty-nine  of  'an 
act  to  organize  courts  of  justices  of  the  peace,  and 
county  courts,  and  to  define  their  jurisdiction  and  du- 
ties,' approved  August  13,  1870,  which  reads  as  follows, 
viz. :  'It  shall  be  lawful  for  justices  of  the  peace  to  ap- 
point deputies  to  transact  business,  and  sign  their 
names  to  any  documents  pertaining"  to  their  business, 
either  as  justices  or  notaries  public ;  provided,  however, 
that  such  deputies  shall  not  sit  on  the  trial  of  cases,'  be, 
and  the  same  is  hereby  repealed." 

§  705.  Act  of  April  14,  1874i«»  (Took  Effect  from  Passage) 
— Validates  Acts  of  District  Clerks. — This  act  provided  that 
all  oflicial  acts  of  clerks  of  the  district  courts,  as  justices 

187  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665.  As  to  amend- 
ment of  repealed  statute,  see  ante,  §  692. 

188  6  L.  T.  1038. 

189  8   L.   T.   94. 


299    LAWS  CONCEENIXG  AUTHOEITY  OF  OFFICERS.    §§  706-709 

of  the  peace,  by  virtue  of  an  election  held  on  the  2d  day 
of  December,  1873,  heretofore  done  and  performed  by 
them  in  conformity  with  the  law  be,  and  the  same  are 
hereby,  declared  to  be  valid,  etc. 

§  706.  Act  of  April  20,  1874i»*>— District  Clerks.— This 
act  authorized  clerks  of  the  district  courts  elected  jus- 
tices of  the  peace  at  the  "late  general  election"  to  qual- 
ify and  hold  the  office. 

§  707.  Act  of  May  3,  1874*^^— (Took  Effect  Six  Months 
After  Passage) — Validates  Acts  of  Notaries. — This  act  pro- 
vides that  the  acts  of  all  duly  appointed  notaries  in  this 
state  heretofore  done  and  performed  in  pursuance  to 
law  shall  be  as  valid  and  binding  as  though  said  no- 
taries had  been  duly  commissioned  by  the  governor  and 
confirmed  by  the  Senate. ^^^ 

§  708.  Constitution  of  1875i»-**— County  Courts.— "Article 
5,  section  15.  There  shall  be  established  in  each  county 
in  this  state  a  county  court,  which  shall  be  a  court  of 
record ;  and  there  shall  be  elected  in  each  county,  by  the 
qualified  voters,  a  county  judge,  who  shall  be  well  in- 
formed in  the  law  of  the  state ;  shall  be  a  conservator  of 
the  peace,  and  shall  hold  his  office  for  two  years  and 
until  his  successor  sliall  be  elected  and  qualified,  etc." 

§  709.  Justices  of  Peace. — "Article  5,  section  19.  Jus- 
tices of  the  peace  shall  have  jurisdiction  in  criminal 
matters  of  all  cases  where  the  penalty  or  fine  to  be  im- 
posfMl  by  law  may  not  be  more  than  for  two  hundred 
dollars,  and  in  civil  matters  of  all  cases  where  the 
amount  in  controversy  is  two  hundred  dollars  or  less,  ex- 
clusive of  interest,  of  which  exclusive  original  juris- 
diction is  not  given  to  the  district  or  county  courts,  and 

190  8  L.  T.  111. 

191  8   L,   T.    198. 

192  Brown  v.  State,  43  Tex.  478. 

193  8  L.  T.  804;  adopted  September  6,  1875;  ratified  February 
15.   1876. 


§§  710,  711   LAWS  CONCEENTNG  AUTHORITY  OF  OFFICERS.    300 

such  otlier  jurisdiction,  criminal  and  civil,  as  may  be 
pvovidod  by  laAv;  and  appeals  to  the  county  court,  shall 
be  allowed  in  all  casi^s  decided  in  justices'  courts  where 
the  judgment  is  for  more  than  twenty  dollars,  exclusive 
of  costs,  and  in  all  criminal  cases,  under  such  regula- 
lations  as  may  be  prescribed  by  law.  And  the  justices 
of  the  peace  shall  be  ex-officio  notaries  public ;  and  they 
shall  hold  their  courts  at  such  times  and  places  as  may 
be  provided  by  law." 

§  710.  Act  of  May  25,  1876i»^— County  Clerks.— «An  act 
to  define  and  regulate  the  duties  of  county  clerks 
throughout  the  state  [taking  effect  from  passage].  Sec- 
tion 4,  That  the  county  clerks  are  hereby  required  to 
keep  the  oflfices  at  the  county  seats  of  their  respective 
counties,  and  give  their  personal  labor,  attendance  and 
supervision  to  the  duties  of  said  office,  and  in  all  cases 
where  the  said  clerks  do  not  reside  at  the  county  seats 
of  their  respective  counties,  they  are  hereby  required  to 
have  one  or  more  of  their  deputies  residing  at  said  county 
seats,  and  all  deputies  appointed  in  accordance  with 
this  act,  shall  have  power  to  do  and  perform  all  other 
acts  that  may  be  lawfully  performed  by  the  county 
clerks." 

§  711.  Idem. — "Section  5.  That  the  county  clerks  of 
the  several  counties  of  this  state,  or  their  deputy  or 
deputies,  shall  have  power,  and  it  shall  be  their  duty, 
when  applied  to  for  that  purpose,  to  take  the  separate 
acknowledgment  of  married  women,  in  all  cases  where 
such  acknowledgment  is  required  by  law  to  be  taken,  to 
the  execution  of  any  deed  or  other  instrument  in  writ- 
ing, or  conveyance  executed  by  them,  and  to  take  the 
acknowledgment  of  all  other  persons  to  deeds  or  other 
written  instruments  or  conveyances,  and  to  take  proof 
by  witnesses  of  all  such  deeds,  written  instruments  or 
conveyances,  which  are  required  or  permitted  by  law 
to  be  so  acknowledged  or  proven  for  record;  and  it 

194   8   L.   T.   846. 


301    LAWS  CONCERNING  AUTHORITY  OF  OFFICERS.    §§  712-716 

shall  also  be  their  duty  to  record,  in  accordance  with 
the  registration  laws  now  or  hereafter  in  force,  all  such 
deeds,  mortgages,  deeds  of  trust  or  any  other  instru- 
ments in  writing,  or  judgments,  which  may  be  permit- 
ted or  required  by  law  to  be  recorded." 

§  712.  Act  of  June  16,  1876i»''— County  Courts.— The  act 
of  June  16,  1876,  organizing  county  courts,  re-enacting 
article  5,  section  15,  of  the  constitution  of  1875^^^  pro- 
vided for  a  county  court  in  each  county  (which  shall  be 
a  court  of  record),  with  one  judge.  It  does  not  provide 
for  his  taking  acknowledgments  and  proof  of  deeds,  etc. 

§  713.  Act  of  August  17,  1876^^'' — Justices  of  Peace.— Sec- 
tion 28  of  this  act  provided  that  "justices  of  the  peace 
shall  be  commissioned  by  the  governor  to  act  as  justices 
of  the  peace  in  their  respective  precincts,  and  also  to 
act  as  notaries  public." 

§  714.  Revised  Statutes  of  1879,  Article  1535— Justices  Ex- 
officio  Notaries. — "Each  justice  of  the  peace  shall  be  com- 
missioned as  justice  of  the  peace  of  his  precinct  and  ex- 
officio  notary  public  of  his  county,  and  shall  take  the 
oath  of  ofl&ce  prescribed  in  the  constitution,  and  give 
the  bond  elsewhere  prescribed  for  notaries  public." 

§  715.  Revised  Statutes  of  1895,  Article  1564 — Justices  Ex- 
officio  Notaries. — "Each  justice  of  the  peace  shall  be  com- 
missioned as  justice  of  the  peace  of  his  precinct  and  ex- 
officio  notary  public  of  his  county,  and  shall  take  the 
oath  of  office  prescribed  in  the  constitution  and  give 
the  bond  prescribed  by  law." 

^  716.  Revised  Statutes  of  1 89 5 ^o**— Officers  Authorized  to 
Take  Acknowledgments,  etc. — The  acknowledgment  or 
proof  of  an  instrument  of  writing  for  record  may  be 

105  8  L.  T.  853. 

196  Ante,   §    708. 

107  8   L.   T.    1001. 

108  Article  4613;   Act   of   May  6,   1871;   P.   D.   7418. 


§  717      LAWS  CONCEENING  AUTHOETTY  OF  OFFICEES.         302 

made  within  this  state  before  either:  1.  A  clerk  of  the 
district  court;  2.  A  judge  or  clerk  of  the  county  court; 
3.  A  notai'y  public.  (Also  a  justice  of  the  peace  as 
ex-officio  notary  public.)*^^ 

§  717.  Effect  of  Above  Statute. — While  this  is  desig- 
nated as  the  act  of  May  6,  1871,  in  Revised  Statutes,  it 
is  not  identical  with  it.^****  The  authority  of  other  offi- 
cers is  revoked  by  section  4,  of  Final  Title  to  Revised 
Statutes  of  1879  and  1895,  which  repeals  all  laws  of  a 
general  nature  not  included  in  Revised  Statutes  (with 
exceptions  contained  in  sections  5  to  18  of  said  Final 
Title).^^* 

199  Ante,  §  715.  For  officers  authorized  to  act  without  the  state, 
see  chapters  18  and  19. 

200  See   ante,    §    703. 

201  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530.  For  construction 
of  statutes,  see  ante,  §§  107-110. 


303  WHO  MAY  TAKE  ACKNOWLEDGMENTS. 


CHAPTER  XVIII. 

WHO   MAY   TAKE   ACKNOWLEDGMENTS   AND   PROOF   WITH- 
OUT THE  STATE  AND  WITHIN  THE  UNITED  STATES. 

§   718.     Act  of  February  3,  1841— Did  not  authorize  aeknowledgments 

without  the  state. 
§   719.     Act  of  February  5,  1841 — Ackuowledgmeuts  without  the  state 

authorized. 
§  720.  Query,    as    to    aeknowledgments    and    proof    by    married 

women. 
§   721.  Certificate  of  conformity  required. 

§   722.     Act    of   April    30,    1846 — Married   women's    acknowledgments 

authorized. 
§   723.  Married    women 's    acknowledgments    authorized    without 

the  state. 
§  724.  Property  applied  to. 

§  725.  Former  law  repealed. 

§  726.  As  to  repeal  of  law  of  February  5,  1841. 

§  727.  Certificates  of  conformity  not  required. 

§  728.  Authority  revoked  when. 

§  729.     Act  of  May  8,  1846 — Commissioners  of  deeds  authorized. 
'  g  730.  Idem. 

§  731.  Remained   in  force   how  long. 

§  732.     Act  of  Ma}'  12,  1846— Acknowledgments  without  state  again 

authorized. 
§  733.  Repealed  conflicting  laws. 

§  734.  Certificates  of  conformity  not  required. 

§  735.  Remained  in  force  how  long. 

§  736.  Effect  on  prior  acts. 

§   737.     Act  of  April  6,  1861 — Acknowledgments  without  state  again 

authorized. 
§  738.  Conflicting  laws  repealed. 

§  740.  Effect  on  prior  laws. 

§  741.     Act  of  December  31,  1861 — Commissioners  of  deeds. 
§  742.  Remained  in  force  how  long. 

§  743.     Act    of    January    14,    1862— Acknowledgments    without    state 

again   authorized. 
§  744.     Act   of  November   13,   1866— Judges  and  clerks   of  courts  of 

record  without  the  state  authorized. 
§  745.  Force  and  effect  of  above  act. 

§  746.     Act  of  August  8,  1870 — Are  district  clerks  authorized? 
§  747.     Act   of   May   6,    1871— Acknowledgments   without     the    stato 

again  authorized. 


§§  718,  719     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  304 

§  748.  Efifect  of  this  act. 

§   749.     Act  of  April  27,  1874 — Validates  acknowledgments  taken  be- 
fore officers  now  authorized. 

§  750.  Force  and  effect  of  above  act. 

§  751.     Act  of  July  28,  1876— Validates  defective  certificates  of  ac- 
knowledgments   of    married   women. 

§  752.     Kevised  Statutes  of  1879  and  189.5— Acknowledgments  with- 
out the  state  again  authorized. 

§  753.  Judges  of  courts  of  record  omitted. 

§  754.  Commissioners  of  deeds  authorized. 

§  755.     Act  of  March  23,  1885,  and  Eevised  Statutes  of  1895— Com- 
missioners of  deeds  again  authorized. 
For   acknowledgments   and  proof  taken  without   the   United 
States,  see  chapter  19. 

For   requirements   of   acknowledgments   and   proof   and   cer- 
tificates thereof  taken  abroad,  see  ante,  chapter  14, 

§  718.  Act  of  February  3,  1841— Did  not  Authorize  Ac- 
knowledgments Without  the  State.— The  act  of  February 
3,  1841,  was  the  first  act  providing  for  separate  acknowl- 
edgments of  married  women,  but  it  made  no  provision 
for  the  taking  of  their  acknowledgments  without  the 
state.  * 

§  719.  Act  of  February  5,  1841^  (Taking  Effect  from  Pas- 
sage)—Acknowledgments  Without  the  State  Authorized.— 
This  act,  entitled  "An  act  of  limitations,"  was  the  first 
act  to  provide  for  the  taking  of  acknowledgments  and 
proof  without  the  state.  Section  21  is  as  follows :  "Ev- 
ery grant,  deed,  or  instrument,  mentioned  in  the  twen- 
tieth section  of  this  act,  hereafter  to  be  made  and  re- 
corded, shall  be  duly  registered  in  the  office  of  the 
proper  county,  upon  the  acknowledgment  of  the  parties 
or  party  signing  the  same  before  the  register,  or  clerk 
of  the  county  court  of  that  county,  or  chief  justice  of 
the  county  or  notary  public  thereof,  or  any  associate  or 
chief  justice  of  the  supreme  court,  or  proved  by  a  sub- 
scribing witness  before  any  such  officer,  and  certified  by 
him  for  record;  and  if  it  be  so  acknowledged  and  cer- 
tified, there  need  be  no  subscribing  witnesses;  and  the 

1  Ante,   §   617. 

2  2  L.  T.  633;  P.  D.  4978;  H.  D.  2777. 


305  AUTHORITY  WITHOUT   THE   STATE.  §   720 

register  shall  certify  thereon  the  day  when  the  same 
shall  be  delivered  for  registration,  give  a  receipt  there- 
for if  required,  and  record  the  same  within  one  month 
thereafter,  under  the  forfeiture  to  the  party  injured,  for 
neglecting  either  particular,  of  five  hundred  dollars,  and 
accumulative  liability  to  such  party,  for  recovery  of  vin- 
dictive damages;  and  such  grant,  deed  or  instrument, 
so  delivered  for  registration,  shall,  according  to  its  na- 
ture and  character,  have  full  effect,  validity,  and  pri- 
ority, from  and  after  its  date  of  presentation  or  delivery 
for  registration,  against  subsequent  purchasers  and 
creditoi-s;  and  such  acknowledgment  or  probate  certifi- 
cate and  registration,  or  either,  as  between  the  parties 
and  their  legal  representatives,  and  all  subsequent  pur- 
chasers and  creditors  with  actual  notice,  or  reasonable 
information  of  the  grant,  deed  or  instrument,  shall  not 
be  deemed  requisite  in  order  to  its  full  effect,  validity 
and  priority,  according  to  its  intrinsic  nature;  if  any 
such  grant,  deed  or  instrument,  executed  abroad,  shall 
be  acknowledged  or  proved  by  two  subscribing  wit- 
nesses, before  any  circuit  or  supreme  judge,  or  chan- 
cellor of  the  United  States  of  North  America  certified 
by  him,  with  the  certificate  of  the  chief  magistrate  of 
the  nation  as  to  the  official  character  of  him  taking  the 
acknowledgment  or  probate;  and  the  great  seal  of  the 
United  States,  thereto  annexed,  or  if  so  acknowledged 
or  proved  before  any  judge  of  a  supreme  court  of  rec- 
ord, or  in  any  such  court  of  any  other  nation  or  king- 
dom, and  certified  by  such  judge,  or  the  record  thereof 
exemplified,  and  either  so  counter-certified  by  the  chief 
magistrate  or  sovereign  of  such  other  nation  or  king- 
dom, under  the  great  seal ;  or  by  the  consul  of  this  re- 
public, or  minister  resident  there;  the  same  shall  be  ad- 
mitted to  record,  and  shall  be  good  and  effectual,  as 
aforesaid,  from  and  after  registration." 

§  720.  Query,  as  to  Acknowledgments  and  Proof  by  Mar- 
ried Women. — There  is  a  question  as  to  whether  or  not 
this  act  authorized  the  taking  of  acknowledgments  of 

20 


T 


§§  721,  722     WHO  MAY  TAKE  ACKNOAVLEDGMENTS.  306 

married  women  without  the  state.  It  is  broad  enough 
in  its  terms,  not  only  to  include  acknowledgments  of 
married  women  abroad,  but  also  proof  of  their  instru- 
ments by  subscribing  witnesses.  xVnd  while  it  is  very 
questionable  if  their  acknowledgments  taken  abroad 
under  this  act  would  be  valid,^  it  seems  clear  that  proof 
of  their  instruments,  under  this  act,  by  subscribing  wit- 
nesses, would  be  invalid.'*  We  have  found  no  case  di- 
rectly in  point.  If  such  proof  had  been  authorized,  it 
would  have  been  revoked  by  act  of  April  30,  1846.^ 

§  721.  Certificates  of  Conformity  Required. — Certificates 
of  conformity  by  the  President  of  the  United  States  as 
to  the  official  character  of  the  officer  was  required  by 
this  act.®  It  remained  in  force  as  to  single  persons 
until  the  taking  effect  of  the  act  of  May  12  (July  13), 
1846,  and  as  to  married  women,  if  it  applied  to  them, 
until  the  act  of  April  30  (June  22),  1846,  took  effect. 

§  722.  Act  of  April  30,  1846*  (Taking  Effect  from  Passage) 
— Married  Women's  Acknowledgments  Authorized. — "Section 
1.  Be  it  enacted  by  the  legislature  of  the  state  of  Texas, 
that  when  a  husband  and  his  wife  have  signed  and  sealed 
any  deed  or  other  writing  purporting  to  be  a  convey- 
ance of  any  estate  or  interest  in  any  land,  slave  or 
slaves,  or  other  effects,  the  separate  property  of  the  wife, 
or  of  the  homestead,  of  the  family,  or  other  property 
exempted  by  law  from  execution,  if  the  wife  appear  be- 
fore the  judge  of  any  supreme  or  district  court  or  notary 
public,  and  being  privately  examined  by  such  officer 
apart  from  her  husband,  shall  declare  that  she  did  freely 
and  Avillingly  sign  and  seal  the  said  writing,  to  be  then 

3  Ante,  §§  627-631,  652-656. 

4  Utzfield  V.  Bodman,  76  Tex.  361,  13  S.  W.  474;  Cole  v.  Bammel, 
62  Tex.  Ill;  Wadkins  v.  Watson,  86  Tex.  198,  24  S.  W.  385,  22  L.  E. 
A.  779;  4  Eose's  Notes,  p.  616. 

5  Post,    §    725. 

6  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  ante,  §§  206-210. 

7  See  ante,  §§  627-631. 

8  2  L.  T.  1462;  P.  D.  1003;  H.  D.  174. 


307  AUTHORITY    WITHOUT    THE    STATU.  §   723 

shown  and  explained  to  her,  and  wishes  not  to  retract 
it,  and  shall  acknowledge  the  said  deed  or  writing  so 
again  shown  to  her  to  be  her  act,  thereupon  such  judge 
or  notary  shall  certify  such  priyy  examination,  acknowl- 
edginent  and  declaration,  under  his  hand  and  seal,  by 
a  certificate  annexed  to  said  writing  to  the  following 
effect  or  substance,  yiz. : 

"  'State  of  Texas, 
County  of 

"  'Before  me.  judge   of,  or    notary  public  of 
county,  personally  appeared ,  wife  of 


parties  to  a  certain  deed  or  writing  bearing  date  on  the 

day  of  ,  and  hereto  annexed,  and  haying 

been  examined  by  me  priyily  and  apart  from  her  hus- 
band, and  haying  the  same  fully  explained  to  her,  she, 

the  said  — ■ ,  acknowledged  the  same  to  be  her  act 

and  deed,  and  declared  that  she  had  willingly  signed, 
sealed  and  deliyered  the  same,  and  that  she  wished  not 
to  retract  it;  to  certify  which,  I  hereto  sign  my  name 

and  affix  my  seal,  this day  of ,  A.  D. .' 

"But  any  certificates  showing  that  the  requisites  of 
the  law  haye  been  complied  with  shall  be  as  yalid  as  the 
form  here  prescribed ;  and  such  deed  or  conyeyance,  so 
certified,  shall  pass  all  the  right,  title  and  interest 
which  the  husband  and  wife,  or  either  of  them,  may  haye 
in  or  to  the  property  therein  conveyed." 

§  723.  Married  Women's  Acknowledgments  Authorized 
Without  the  State.— "Section  2.®  Be  it  further  enacted 
that  when  a  husband  and  wife  haye  signed  and  sealed 
any  deed,  of  the  character  described  in  the  first  section 
of  this  act,  out  of  this  state,  but  within  the  United  States 
or  any  of  their  territories,  if  the  wife  appear  before  the 
judge  of  any  court  of  record  haying  a  seal,  in  any  of 
said  states  or  territories,  and  be  examined,  and  make 
the  declarations  and  acknowledgments  provided  for  in 
said  section,  and  such  judge   shall    make   a  certificate 

9  H.   D.,   art.   175. 


§§  724-726     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  308 

thereof  in  the  manner  provided  for  in  said  section,  and 
attest  the  same  under  his  hand  and  the  seal  of  his  court, 
such  deed  shall  have  the  same  force  and  effect  as  if  the 
same  had  been  done  in  this  state,  before  any  of  the  oflfl- 
cers  named  in  said  section;  and  when  any  such  deed 
shall  have  been  signed  and  sealed  out  of  the  United 
States,  such  examinations,  declarations  and  acknowl- 
edgments may  be  taken  or  made  before  any  public  min- 
ister, charg^  d'affaires,  or  consul  of  the  United  States, 
and  the  certificate  of  such  minister,  charg^  d'af- 
faires, or  consul,  in  the  manner  and  form  provided 
for  in  said  section,  and  attested  under  their  hand 
and  official  seal,  shall  have  the  force  and  effect 
as  if  such  examination,  declaration  and  acknowl- 
edgment had  been  taken  or  made  and  certified  in  this 
state,  before  any  of  the  officers  named  in  said  first  sec- 
tion." 

§  724.  Property  Applied  to.— "Section  3.*^  Be  it  fur- 
ther enacted  that  this  act  is  intended  to  apply  to  the 
property  mentioned  in  the  twenty-second  section  of  the 
seventh  article  of  the  constitution,  as  well  as  to  the 
property  owned  or  claimed  by  the  wife  before  marriage, 
and  that  acquired  afterward  by  purchase,  gift,  devise  or 
descent." 

§  725.  Former  Laws  Repealed. — "Section  L^^  Be  it 
further  enacted,  that  all  former  laws  and  parts  of  laws 
concerning  the  mode  of  conveyance  of  property  in  which 
the  wife  has  an  interest,  be  and  the  same  are  hereby  re- 
pealed." 

§  726.  As  to  the  Repeal  of  the  Act  of  February  5,  1841.— 
It  is  not  clear  whether  or  not  this  act  repeals  the  act 
of  February  5,  1841,  in  so  far  as  that  act  may  authorize 
any  circuit  or  supreme  judge  or  chancellor  of  the  United 

10  H.  D.,  art.  176. 

11  H.  D.,  art.  177. 


309  AUTHOEITY   WITHOUT    THE    STATE.        §§  727-729 

States  to  take    acknowledgments    of    married    women 
without  the  state. ^^ 

§  727.  Certificates  of  Conformity  not  Required. — By  this 
act  (April  30, 1846),  and  subsequent  to  this  time,  no  cer- 
tificate of  conformity  was  required.^^ 

§  728.  Authority  Revoked  When. — The  authority  of  the 
oflBcers  authorized  by  this  act  to  take  acknowledgments 
of  married  women  without  the  state  and  within  the 
United  States,  to  wit,  judges  of  courts  of  record,  was 
not  revoked  until  the  adoption  of  Kevised  Statutes  of 
1879,  September  1st,  but  in  the  meantime  the  power 
was  extended  to  additional  officers  by  the  acts  of  May 
8,  1846,  November  13,  1866,  and  May  6,  1871.**  After 
the  adoption  of  Revised  Statutes  of  1879,  judges  were 
not  authorized  to  authenticate  instruments  executed 
abroad.*** 

§  729.  Act  of  May  8,  1846i«  (Taking  Effect  June  22,  1846) 
— Commissioners  of  Deeds  Authorized. — "Section  1.  Be  it 
enacted  by  the  state  of  Texas,  that  the  governor  of  the 
state  of  Texas  is  hereby  authorized  to  appoint  and  com- 
mission one  or  more  persons  in  each  or  such  of  the 
other  states  of  the  United  States,  or  the  District  of  Co- 
lumbia, as  he  may  deem  expedient,  which  commission- 
ers shall  continue  in  office  during  the  pleasure  of  the 
governor,  and  shall  have  the  authority  to  take  the  ac- 
knowledgments and  proofs  of  the  execution  of  any  deed, 
mortgage,  or  other  conveyance  of  lands,  tenements,  or 
hereditaments,  and  also  to  take  the  examination  of  mar- 
ried women  as  to  their  relinquishment  of  any  right,  title 

12  See  ante,  §§  641  and  627-631. 

13  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  Carpenter  v.  Dexter, 
75  U.  S.  (8  Wall.)  513,  19  L.  ed.  426;  Century  Digest,  vol.  1,  p.  1000, 
See  ante,  §§  206-210. 

14  Ante,  §§  652-656. 

16  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530. 
16  2  L.  T.  1493;  P.  D.  3762;  H.  D.  120. 


§§730,731     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  310 

or  interest  which  they  may  have  in  any  lands  lying  or 
being  in  this  state." 

§  730.  Idem.— "Section  2.^^  Be  it  further  enacted, 
that  any  contract,  letter  of  attorney  or  other  writing, 
under  seal,  to  be  used  or  recorded  in  this  state,  and 
such  acknowledgment  or  proof  taken  or  made  in  the 
manner  directed  by  the  laws  of  this  state,  and  certified 
by  any  one  of  said  commissioners,  before  whom  the 
same  shall  be  taken  or  made,  under  his  seal,  which  cer- 
tificate shall  be  indorsed  on  or  annexed  to  said  deed  or 
instrument  aforesaid, — shall  have  the  same  effect  and  be 
as  good  and  valid  in  law  for  all  purposes  as  if  the  same 
had  been  made  or  taken  as  now  required  by  law." 

§  731.  Remained  in  Force  How  Long. — This  act  was  not 
repealed  by  the  act  of  May  12  (July  13),  1846.^^  It  re- 
mained in  force  and  authorized  commissioners  to  act  at 
least  to  the  taking  effect  of  the  act  of  April  6,  1861,  and 
probably  to  the  adoption  of  the  Revised  Statutes  of 
1879. ^'^  The  said  act  of  April  6,  1861,  provided  that 
proof  of  every  instrument,  etc.,  shall  be  (when  taken 
from  without  this  state  and  within  the  United  States 
and  Confederate  states)  before  some  judge  of  a  court  of 
record  having  a  seal.  While  the  question  as  to  the  au- 
thority of  commissioners  to  act  during  the  year  1868 
was  not  discussed  or  raised,  in  the  case  of  Davis  v. 
Roosevelt,  53  Tex.  314,  it  seems  to  have  been  taken  for 
granted,  the  court  saying,  that  "the  law  in  force  in 
1868  did  not  require  a  commissioner  of  deeds  for  other 
states  to  provide  himself  with  a  seal,"  etc.  In  another 
case  it  was  held  that  a  commissioner  once  appointed  un- 
der this  act,  would  be  perpetually  qualified  until  re- 
called by  a  governor  of  Texas,  his  term  not  expiring 
with  that  of  the  governor  who  appointed  him.     In  this 

17  H.  D.   121. 

18  Monroe  v.  Arledge,  23  Tex.  481;  Wren   v.   Howland   (Tex.   Civ. 
App.),  75  S.  W.  894. 

19  Article  542. 


311  AUTHOEITY    WITHOUT    THE    STATE.        §§  732-734 

case  a  commissioner  for  the  state  of  Georgia  had  taken 
the  acknowledgment  in  the  year  1860.^^  Again,  this 
act,  May  8,  1846,  is  a  special  act,  and  the  act  of  April 
6,  1861,  is  a  general  act.  A  general  law  will  not  be 
held  to  repeal  a  special  law  on  same  subject.^^  Under 
this  act  no   certificate  of  conformity  was  required.^^ 

§  732.  Act  of  May  12,  184623  (Took  Effect  July  13,  1848), 
— Acknowledgment  Without  the  State  Again  Authorized. — 
"Section  11.  Proof  or  acknowledgment  of  every  instru- 
ment of  writing  for  record,  shall  be  taken  by  some  one 
of  the  following  officers :  First,  when  acknowledged  or 
proven  within  the  state,  before  some  notary  public  or 
clerk  of  the  county  court  of  any  county  in  the  state. 
Second,  when  acknowledged  or  proven  without  this 
state,  and  within  the  United  States  or  their  territories, 
before  some  judge  of  a  court  of  record  having  a  seal. 
Third,  when  acknowledged  or  proved  without  the  United 
States,  before  some  public  minister,  charge  d'affaires, 
or  consul  of  the  United  States;  and  in  all  cases  the  cer- 
tificate of  such  acknowledgment  or  proof,  shall  be  at- 
tested under  the  official  seal  of  the  officer  taking  the 
same." 

§  733.  Repealed  Conflicting  Laws.— "Section  19.  All 
laws  and  parts  of  laws  coutlicting  with  the  provision  of 
this  act,  be,  and  the  same  are  hereby,  repealed." 

§  734.  Certificates  of  Confoimity  not  Required. — Under 
this  act  (and  thereafter)  certificates  of  confoi'iuity  were 
not  required.^* 

20  Thorn   v.   Frazer,   60   Tex.   261. 

21  Ellis  V.  Batts,  26  Tex.  704;  City  of  Laredo  v.  Martin,  52  Tex. 
562;  Monroe  v.  Arleclge,  23  Tex.  481.  But  see  December  3,  1861; 
post,  §   742. 

22  See  ante,  §§  206-210. 

23  2  L.  T.  1549;  P.  D.  .5011;  H.  D.  2794. 

24  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  Carpenter  v.  Dextor, 
75  U.  S.  (8  Wall.)  513,  19  L.  ed.  42G;  Century  Digest,  vol.  1,  p.  1000. 


§§  735-737     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  312 

§  735.  Remained  in  Force  How  Long. — It  remained  io 
force  and  antliorized  judges  of  courts  of  record  to  act 
nntil  adoption  of  Revised  Statutes  of  1879,  which  omit- 
ted them,  but  the  authority  was  in  the  meantime  ex- 
tended to  other  officers  by  the  acts  of  November  13, 18C(i, 
and  May  6,  1871.^^  After  the  adoption  of  the  Revised 
Statutes  of  1879  judges  were  not  authorized  to  authenti- 
cate instruments  executed  abroad.^ 

§  736.  Effect  on  Prior  Acts. — It  does  not  repeal  the 
act  of  May  8,  1846,  authorizing  commissioners  of 
deeds.^''  For  acknowledgments  without  the  state  and 
within  the  United  States  it  authorized  the  same  officers 
as  the  act  of  April  30, 1846.  With  the  above  exceptions, 
it  revokes  the  authority  of  all  other  officers  than  those 
named  therein.^^ 

§  737.  Act  of  April  6,  ISBl^^  (Taking  Effect  from  Passage) 
— Acknowledgments  Without  the  State  Again  Authorized. — 
"Section  1.  Be  it  enacted  by  the  legislature  of  the 
state  of  Texas,  that  the  proof  of  every  instrument  of 
writing  for  record  shall  be  by  some  one  of  the  following 
officers:  First,  when  acknowledged  or  proven  within 
the  state  by  some  notary  public,  clerk  of  the  county 
court,  or  judge  of  a  court  of  record;  second,  when  ac- 
knowledged or  proven  without  this  state  and  within  the 
Confederate  states  of  America,  or  their  territories,  or 
the  United  States  of  America  or  their  territories,  be- 
fore some  judge  of  a  court  of  record  having  a  seal ;  third, 
when  acknowledged  or  proven  without  the  United 
States  or  Confederate  states,  before  some  public  minis- 
ter, charge  d'affaires  or  consul  of  the  Confederate 
states :  And  in  all  cases  the  certificate  of  such  acknowl- 
edgment or  proof  shall  be  attested  under  the  official 

25  See  ante,  §§  652-656. 

26  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530. 

27  Monroe  v.  Arledge,  23  Tex.  481. 

28  Ante,  §§  622-626,  646. 

29  5  L.  T.  373. 


313  AUTHORITY   WITHOUT    THE    STATE.        §§   738-742 

seal  of  the  officer  taking  the  same.  That  when  any 
deed,  transfer,  or  any  other  instrument  of  writing  exe- 
cuted by  the  president  of  any  railroad  company,  which 
has  or  may  be  incorporated  by  the  laws  of  this  state, 
shall  be  attested  by  the  seal  of  said  company,  it  shall  be 
considered  sufficiently  authenticated  to  authorize  the 
clerk  of  the  county  court  to  record  the  same." 

§  738.  Conflicting  Laws  Repealed. — "Section  2.  That 
the  provisions  of  all  laws,  so  far  as  they  conflict  with 
this  act,  be  and  are  hereby  repealed." 

§  740.  Effect  on  Prior  Laws. — This  act  repealed  the  au- 
thority of  all  officers  authorized  by  previous  general 
acts,  but  probably  not  by  special  acts  such  as  the  act  of 
May  8,  1846.^®  And  it  seems  from  the  case  of  Monroe 
V.  Arledge,  23  Tex.  481,  that  the  act  of  May  8,  1846, 
would  be  a  special  act. 

§  741.  Act  of  December  31,  1861"^  (Taking  Effect  from 
Passage) — Commissioners  of  Deeds  for  Indian  Territory. — This 
act  authorized  the  governor  of  Texas  to  appoint  a  suit- 
able number  of  persons  in  the  Choctaw,  Chickasaw, 
Cherokee  and  Creek  nations  of  Indians  not  to  exceed 
four  in  each  nation,  commissioners  of  deeds,  etc.,  who 
shall  be  authorized  to  take  acknowledgments  of  deeds, 
etc.,  including  acknowledgments  of  married  women,  as 
required  by  the  laws  of  this  state.  They  shall  procure 
and  use  a  seal  with  a  star  of  five  points  in  the  center, 
and  the  words  "Commissioners  of  the  state  of  Texas" 
engraved  thereon. 

§  742.  Remained  in  Force  How  Long. — It  seems  that  this 
act  remained  in  force  until  the  adoption  of  the  Revised 
Statutes  of  1879,  and  was  repealed  by  not  being  incor- 

30  Ante,  §  687;  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W. 
691;  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665;  Ellis  v.  Batts,  26 
Tex.  704;  City  of  Laredo  v.  Martin,  52  Tex.  562. 

31  5  L.  T.  545. 


§§  743-745     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  314 

porated  therein. ^^  In  the  ease  of  Davis  v.  Roosevelt,^^ 
in  disenssino-  this  act,  tlie  court  says :  "There  was  such  a 
statute  in  force  in  1868,  in  regard  to  commissioners 
for  the  Choctaw,  etc.,  Indians,  and  there  is  now  such 
a  statute  in  regard  to  commissioners  generally."  (This 
decision  was  rendered  in  1880.)  Final  Title,  section 
4,  of  the  Revised  Statutes,  repeals  only  laws  of  a  general 
nature,  not  incorporated  therein,  and  if  the  above  act 
was  repealed,  it  must  be  because  it  was  of  a  general  na- 
ture. A  similar  act  was  held  to  be  a  special  act  in  Mon- 
roe V.  Arledge.^"* 

§  743.  Act  of  January  14,  1862^^ — Acknowledgments 
Without  the  State  Again  Authorized. — This  act  is  identical 
with,  and  a  re-enactment  of,  the  act  of  April  6,  1861,  in 
so  far  as  it  affects  acknowledgments  taken  without  the 
state.  ^® 

§  744.  Act  of  November  13,  1866  (Taking  Effect  from 
Passage)-*^' — Judges  and  Clerks  of  Courts  of  Record  Without 
the  State  Authorized. — This  act  amending  section  11  of  act 
of  May  12,  1846,  provided  that  every  instrument  of 
writing  for  record  shall  be  acknowledged  or  proven  for 
record  without  this  state  and  within  the  United  States 
or  their  territories  before  some  judge  or  clerk  of  a 
court  of  record  having  a  seal. 

§  745.  Force  and  Effect  of  the  Above  Act. — By  this  act 
it  is  seen  that  a  clerk  as  well  as  a  judge  may  act.  It 
remained  in  force  to  the  adoption  of  Revised  Statutes 
of  1879,  but  the  authority  was  extended  in  the  mean- 
time to  other  ofllcers  by  act  of  May  6,  1871.  It  amends 
a  repealed  statute.^* 

32  Final  Title,  Revised  Statutes  of  1879,  §  4;  Talbert  v.  Dull,  70  Tex. 
679,  8  S.  W.  530. 

33  53  Tex.  314. 

34  23  Tex.  481.     See  ante,  §  731. 

35  P.  D.  5024;  5  L.  T.  501. 

36  See   ante,    §    737. 

37  5  L.  T.  1128. 

38  For  effect  of  same,  see  ante,  §  692. 


315  AUTHOKITY   WITHOUT    THE    STATE.        §§  746-749 

§  746.  Act  of  August  8,  ISTO^^— Are  District  Clerks  Au- 
thorized ?— This  act  authorizing  district  clerks,  their  dep- 
uties and  notaries,  in  general  terms  to  take  acknowledg- 
ments and  proof,  probably  does  not  apply  to  such  offi- 
cers without  this  state.  Though  district  clerks  gener- 
ally, being  clerks  of  courts  of  record,  were  no  doubt  au- 
thorized to  take  acknowledgments  without  this  state, 
by  the  above  act  of  1866. 

§  747.  Act  of  May  6,  1871  (Taking  Effect  from  Passage) ^o 
— Acknowledgments  Without  the  State  Again  Authorized. — 
This  act  provides  that  acknowledgments  or  proof  of  in- 
struments for  record  may  be  taken  without  this  state 
and  within  the  United  States  and  their  territories  before 
a  notary  public,  commissioner  of  deeds  for  this  state,  or 
before  a  judge  or  clerk  of  a  court  of  record  having  a 
seal. 

§  748.  Effect  of  This  Act.— Under  this  act  an  acknowl- 
edgment taken  in  the  state  of  Louisiana  before  a  re- 
corder and  ex-offlcio  notary  public,  in  1878,  was  suffi- 
cient, though  not  signed  as  notary.^^  It  does  not  repeal 
previous  laws.^^  It  was  amended  by  article  4306  of  the 
Revised  Statutes  of  1879.^^ 

§  749.  Act  of  April  27,  1874  (Taking  Effect  from  Pas- 
sage) ^^ — Validates  Acknowledgments  Taken  Before  Officers 
Now  Authorized. — This  act  provided  that  every  deed,  etc., 
permitted  by  law  to  be  recorded  that  shall  have  been  ac- 
knowledged or  proven  in  the  manner  prescribed  by  law, 
without  the  state  and  within  the  United  States  and 
their  territories,  before  any  one  of  the  officers  in  such 
cases  now  authorized  by  law  to  take  such  acknowledg- 
ments or  proofs,  and  which  shall  have  been  duly  certi- 

39  6  L.  T.  223. 

40  6  L.   T.   979. 

41  Wilson  V.  Simpson,  68  Tex.  313,  4  S.  W.  839. 

42  Herndon  v.  Reed,  82  Tex.  6.51,  18  S.  W,  665. 

43  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  .530. 

44  8  L.  T.  154. 


§§  750-752     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  316 

fied  by  siicli  officer,  shall  be  held  to  have  been  duly  ac- 
kuowledo-ed  or  proven;  and  if  heretofore  registered, 
shall  be  held  to  be  duly  registered ;  but  shall  not  be  con- 
strued as  to  give  it  any  right  acquired  prior  to  its  pas- 
sage. 

§  750.  Force  and  Effect  of  Above  Act. — This  act  contin- 
ues in  force.*^  It  cures  former  want  of  authority  in  no- 
tary. ^^  In  1847  a  notary  residing  in  Mexico  was  not 
authorized  to  take  acknowledgments,  and  the  validating 
statute  of  1874  only  validated  acknowledgments  of  offi- 
cers residing  in  the  United  States.*'' 

§  751.  Act  of  July  28,  1876  (Taking  Effect  November  19, 
18764S— Validates  Defective  Certificates  of  Acknowledgments 
of  Married  Women.— This  act  provided  that  any  certifi- 
cates of  conveyances  of  property  in  which  a  married 
woman  has  an  interest  heretofore  taken  by  any  officer 
authorized  by  the  laws  of  this  state  to  take  acknowledg- 
ments, when  such  certificate  is  invalid,  because  the  same 
is  wanting  in  any  word  or  words  necessary  to  be  con- 
tained in  such  certificate  by  the  requirements  of  stat- 
utes, shall  nevertheless  be  as  valid  and  binding  as  if  in 
conformity  to  law ;  provided,  that  such  certificate  shall 
show  on  its  face  that  the  married  woman  was  exam- 
ined by  the  officer  taking  the  acknowledgment,  separate 
and  apart  from  her  husband,  having  the  same  fully  ex- 
plained to  her,  she  declared  that  she  had  willingly 
signed  the  same,  and  that  she  did  not  wish  to  retract  it. 
It  continues  in  force.*^ 

§  752.  Revised  Statutes  of  1879  and  18955»— Acknowledg- 
ments Without  the  State  Again   Authorized. — By    this    act 

45  See  Final  Title,  section   7,  Eevised  Statutes  of   1895. 

46  Baker  v.  Wescott,  73  Tex.  131,  11  S.  W.  157;  McCelvey  v.  Cryer 
(Tex.  Civ.  App.),  28  S.  W.  691. 

47  Birdseye  v.  Eogers  (Tex.  Civ.  App.),  26  S.  W.  843. 

48  8  L.  T.  897. 

49  See  Final  Title,  section  7,  Eevised  Statutes  of  1895. 

50  Articles  4306  and  4614;  P.  D.  7418. 


317  AUTHORITY   WITHOUT    THE    STATE.        §§  753-755 

proof  of  acknowledgment  of  an  instrument  of  writing 
for  record  may  be  made  without  this  state  and  within 
United  States  or  their  territories  before  either  a  clerk 
of  a  court  of  record  having  a  seal,  a  commissioner  of 
deeds  duly  appointed  under  the  laws  of  this  state,  and 
a  notary  public. 

§  753.  Judges  of  Courts  of  Record  Omitted. — It  is  seen 
that  judges  of  courts  of  record  are  omitted,  and  that  the 
act  authorizing  judges  of  courts  of  record  to  take  ac- 
knowledgments being  of  a  general  nature,  and  not  in- 
corporated in  Revised  Statutes  of  1879  and  1895,  was 
repealed  by  Final  Title,  section  4.^^ 


§  754.  Article  542,  Revised  Statutes  of  1879  (Taking  Ef- 
fect September  1,  1879)^- — Commissioners  of  Deeds  Authorized. 
The  governor  of  the  state  of  Texas  is  hereby  authorized 
to  name,  appoint  and  commission  one  or  more  persons 
in  each  or  any  of  the  other  states  of  the  United  States, 
or  the  District  of  Columbia,  or  in  each  or  any  of  the 
territories  of  the  United  States,  upon  the  recommenda- 
tion of  the  executive  authority  of  said  states,  District 
of  Columbia  or  said  territories,  as  he  may  deem  expe- 
dient, which  commissioners  shall  hold  office  for  two 
years  or  until  their  successors  are  qualified,  and  shall 
have  authority  to  take  the  acknowledgments  and  proofs 
of  the  execution  of  any  deed,  mortgage  or  other  convey- 
ance of  any  lands,  tenements,  or  hereditaments,  and  also 
to  take  the  privy  examination,  acknowledgment  and 
declaration  of  married  women  as  to  all  such  instru- 
ments when  executed  by  them. 

§  755.  Act  of  March  23,  1885-'^-'* — Commissioners  of  Deeds 
Again  Authorized. — The  governor  of  the  state  of  Texas  is 
hereby  authorized  to  name,  appoint,  and  commission  one 

51  Ante,  §  108;  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530.  See 
ante,  §  731. 

52  P,   D.    3762. 

53  9  L.  T.  718;  article  618,  Revised  Statutes  of  1895. 


§  755  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  318 

or  more  persons  in  each  or  any  of  the  other  states  of  the 
United  States,  the  District  of  Columbia,  or  in  each  or 
any  of  the  territories  of  the  United  States,  or  in  each 
or  any  foreign  country,  upon  the  recommendation  of 
the  executive  authority  of  said  states,  District  of  Colum- 
bia, or  territories  or  foreign  country,  as  he  may  deem 
expedient,  which  commissioners  shall  hold  office  for  two 
year's  or  until  their  successors  are  qualified,  and  shall 
have  the  authority  to  take  acknowledgments  and  proofs 
of  the  execution  of  any  deed,  mortgage  or  other  convey- 
ance of  any  lands,  tenements,  or  hereditaments  and  dec- 
laration of  married  women  as  to  all  such  instruments 
when  executed  by  them. 


319  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  §  756 


CHAPTER  XIX. 

WHO   MAY   TAKE   ACKNOWLEDGMENTS   AND    PEOOF  WITH- 
OUT  THE   UNITED   STATES. 

§   756.     Act    of     February    5,    1841  — Acknowledgments     without     the 
United  States  authorized. 

§   757.  Certificates   of   conformity   required. 

§  758.     Act  of  April  30,  1846— Acknowledgments  of  married  women 
without  United  States. 

§  759.  Former  laws  repealed. 

§  760.     Act  of  May  12,  1846 — Acknowledgments  taken  abroad  again 
authorized. 

§  761.     Act     of    April    6,    1861,     and    January   14,   1862— Prior    act 
amended. 

§  762.  Authority  of  others  revoked. 

§  763.     Act   of   November   13,   1866 — Prior   act   amended. 

§  764.     Act  of  May  6,  1871— Prior  act  amended. 

§  765.     Act  of  July  28,  1876— Validates  certain  certificates  of  wife's 
acknowledgment. 

§   766.     Eevised  Statutes  of  1879  and  1895— Acknowledgments  abroad 
again  authorized. 

§  767.     Act  of  March  23,  1885,  and  Eevised  Statutes  of  1895 — Com- 
missioners of  deeds  authorized. 
For  requirements  of  acknowledgments  and  proofs,  and  cer- 
tificates thereof,  taken  abroad,  see  ante,  chapter  14. 

§  756.  Act  of  February  5,  1841— Acknowledgments  With- 
out United  States  Authorized. — The  act  of  February  5 
(March  17),  1841/  was  the  first  to  provide  for  acknowl- 
edgments and  proof  of  conveyances  of  Texas  lands  ex- 
ecuted in  foreign  countries.  This  act  provided  that 
every  deed  hereafter  to  be  made  and  recorded  shall  be 
duly  registered,  if  acknowledged  or  proved  by  two  sub- 
scribing witnesses  without  the  United  States,  before 
any  judge  of  a  supreme  court  of  record  or  in  any  such 
court  of  any  other  nation  or  kingdom,  and  certified  by 
such  judge,  or  the  record  thereof  exemplified,  and  either 
so  counter-certified  by  the  chief  magistrate  or  sovereign 

1   H.  D.  2777;  P.  D.  4978;  2  L.  T.  633. 


§§  757,  758     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  320 

of  such  other  nation  or  kingdom  under  the  great  seal,  or 
bj  the  consul  of  this  republic,  or  minister  resident  there; 
the  same  shall  be  admitted  to  record,  and  shall  be  good 
and  effectual,  as  aforesaid,  from  and  after  registration.^ 

§  757.  Certificates  of  Conformity  Required. — Certificates 
of  conformity  were  required  by  this  act.^  It  remained 
in  force  as  to  single  acknowledgments  until  the  act  of 
May  12  (July  13),  1846,  took  effect  extending  the  author- 
ity to  all  judges  of  courts  of  record  having  a  seal.  And 
it  remained  in  force  as  to  acknowledgments  of  married 
women,  if  it  applied  to  them,*  until  the  act  of  April  30 
(June  22),  1846,  took  effect. 

§  758.  Act  of  April  30,  1846— Acknowledgments  of  Mar- 
ried Women  Without  United  States. — The  act  of  April  30 
(June  22),  1846,^  providing  a  method  of  conveying  prop- 
erty in  which  the  wife  has  an  interest,  provides  that 
when  a  husband  and  wife  have  signed  and  sealed  any 
deed  out  of  the  United  States,  the  wife  appeared  before 
any  public  minister,  charge  d'affaires,  or  consul  of  the 
United  States,  and  be  privately  examined  by  such  of- 
ficer apart  from  her  husband,  and  she  declared  that  she 
did  freely  and  willingly  sign  and  seal  the  said  writing 
to  be  then  shown  and  explained  to  her  and  wishes  not 
to  retract  it,  and  shall  acknowledge  the  said  deed  or 
writing,  so  again  shown  to  her,  to  be  her  act,  and  the 
certificate  of  such  minister,  charge  d'affaires,  or  consul 
in  the  manner  and  form  provided  for  in  the  first  section 
of  this  act,**  and  attested  under  their  hand  and  official 
seal,  shall  have  the  same  force  and  effect  as  if  made  be- 
fore the  proper  officer  in  this  state. '^ 

2  Ante,  §§  719,  720. 

3  Texas  Land  Co.  v.  Williams,  51  Tex.  51. 

4  Ante,  §§  627-631,  652-656,  720. 

5  H.  D.  175;  P.  D.  1004;  2  L.  T.  1462. 

6  Ante,   §   722. 

7  See  ante,  §  723. 


321  WITHOUT    UNITED    STATES.  §§   759-762 

§  759.  Former  Laws  Repealed — This  repeals  all  former 
laws  concerning  the  conveyance  of  property  in  which 
the  wife  has  an  interest,  but  quaere,  Does  it  repeal  the 
act  of  February  5,  1841?^  By  this  act  and  subsequent 
to  this  time  no  certificate  of  conformity  was  required,^ 
It  remained  in  force  until  the  Revised  Statutes  of  1879 
went  into  force.^^ 

§  760.  Act  of  May  12,  1846 — Acknowledgments  Taken 
Abroad  Ag-ain  Authorized. — The  act  of  May  12,  1846  ( tak- 
ing- effect  July  13,  1846),^^  provided  that  proof  of  every 
instrument  of  writing  for  record  shall  be  taken  with- 
out the  United  States,  before  some  public  minister, 
charge  d'affaires  or  consul  of  United  States,  and  in  all 
cases  the  certificate  of  acknowledgment  or  proof  shall 
be  attested  under  the  oflftcial  seal  of  such  oflftcer.  Such 
officers  v>'ere  authorized  under  this  act  until  the  passage 
of  the  act  of  April  16,  1861.*^  After  the  passage  of  this 
act  certificates  of  conformity  were  not  required.*^ 

§  761.  Acts  of  April  6,  1861,  and  January  14,  1861— Prior 
Act  Amended. — The  acts  of  April  6,  1861,  and  January 
14,  1862,  amending  act  of  May  12,  1846  (taking  effect 
from  passage),*^  provided  that  proof  of  eveiy  instrument 
of  writing  for  record  shall  be  taken  without  the  United 
States  or  Confederate  states,  before  some  public  minis- 
ter, charge  d'affaires  or  consul  of  the  Confederate  states, 
and  a  certificate  of  such  acknowledgment  or  proof 
thereby  attested  by  the  official  seal  of  such  oflftcer. 

§  762.  Authority  of  Others  Revoked. — These  acts  re- 
voked the  authority  of  the  officers  authorized  by  pre- 
vious acts,  and  authorized,  instead  of  the  foreign  repre- 

8  See  ante,   §   726. 

0  Texas  Land  Co.  v.  Williams,  .51  Tex.  51;  autc,  §  727. 

10  Ante,  §  728. 

11  2  L.  T.  1544. 

12  Herndon  v.  Eeed,  82  Tex.  651,  18  S.  W.  665. 

13  Texas  Land  Co.  v.  Williams,  51  Tex.  51;  ante,  §  734. 

14  5  L.  T.  373,  501. 

21 


§§  763-765      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  322 

seutatives  of  the  United  States,  those  of  the  Confederate 
states.^^ 

§  763.  Act  of  November  13,  1866— Prior  Act  Amended.— 
The  act  of  November  13,  18G6,  taking  effect  from  pas- 
sage,^«  amending  section  11  of  act  of  May  12,  1846,  pro- 
vided that  proof  of  every  instrument  for  record  shall 
be  taken  by  some  one  of  the  following  officers:  When 
without  the  United  States,  before  some  public  minister, 
charge  d'affaires,  or  consul  of  the  United  States,  at- 
tested by  certificate  under  seal. 

§  764.  Act  of  May  6,  1871 — Prior  Act  Amended. — The 
act  of  May  6,  1871,  taking  effect  from  passage,^''  amend- 
ing section  11  of  act  of  May  12,  1846,  provided  that 
proof  or  acknowledgment  of  every  instrument  for  rec- 
ord may  be  taken  without  the  United  States  before  some 
public  minister,  charge  d'affaires,  consul  or  consular 
agent  of  the  United  States,  or  notary  public,  and  at- 
tested under  his  official  seal. 

§  765.  Act  of  July  28,  1876— Validates  Certain  Certificates 
of  Wife's  Acknowledgments — The  act  of  July  28,  1876, 
taking  effect  November  19,  1876,**  provided  that  any 
certificate  of  acknowledgment  or  proof  of  conveyance 
of  property  in  which  a  married  woman  has  an  interest 
heretofore  taken  by  any  officer  authorized  by  the  laws 
of  this  state  to  take  acknowledgments  and  proofs,  when- 
ever such  certificate  is  invalid  because  the  same  is  want- 
ing in  any  word  or  words  necessary  to  be  contained  in 
such  certificates  by  the  requirements  of  the  statutes, 
shall  nevertheless  be  valid  and  as  binding  as  if  in  con- 
formity to  law ;  provided  that  such  certificate  shall  show 
on  its  face  that  the  married  woman  was  examined  by  the 

15  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665;  Talbert  v.  Dull,  70 
Tex.  679,  8  S.  W.  530;  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W. 
691;  ante,  §§  622-625. 

16  5  L.  T.  1128. 

17  6  L.  T.  979. 

18  8  L.  T.  897. 


323  WITHOUT   UNITED   STATES.  §§   766,   767 

officer  taking  the  acknowledgment,  separate  and  apart 
from  her  husband,  and  having  the  same  fully  explained 
to  her  she  declared  that  she  had  willingly  signed  the 
same,  and  that  she  did  not  wish  to  retract  it,  or  words 
to  that  ejffect.*^     This  act  remains  in  force.^® 

§  766.  Revised  Statutes  of  1879  and  1895— Acknowledg- 
ments Abroad  Again  Authorized — The  Revised  Statutes 
of  1879,^^and  1895^^  provided  that  the  acknowledg- 
ment or  proof  of  an  instrument  of  writing  for  record 
may  be  made  without  the  United  States  before  either: 
1.  A  minister,  commissioner  or  charge  d'affaires  of  the 
United  States  resident  and  accredited  in  the  country 
where  the  proof  or  acknowledgment  is  made;  2.  A  con- 
sul, general,  consul,  vice-consul,  commercial  agent,  dep- 
uty consul  or  consular  agent  of  the  United  States  res- 
ident in  the  country  where  the  proof  or  acknowledgment 
is  made;  3.  A  notary  public. 

§  767.  Act  of  March  23,  188523— Commissioners  ^f  3)eeds 
Authorized — "The  governor  of  the  state  of  Texas  is 
hereby  authorized  to  name,  appoint  and  commission  one 
or  more  persons  in  each  or  any  of  the  other  states  of  the 
United  States,  the  District  of  Columbia,  or  in  each  or 
any  of  the  territories  of  the  United  States  or  in  each  or 
any  foreign  country,  upon  the  recommendation  of  the 
executive  authority  of  said  states.  District  of  Columbia, 
or  territories  or  foreign  country  as  he  may  deem  ex- 
pedient, which  commissioners  shall  hold  office  for  two 
years  or  until  their  successors  are  qualified,  and  shall 
have  authority  to  take  the  acknowledgments  and  proofs 
of  the  execution  of  any  deed,  mortgage  or  other  con- 
veyance of  any  lands,  tenements,  or  hereditaments  and 
declaration  of  married  women  as  to  all  such  instruments 
when  executed  by  them." 

19  Post,  §  1049. 

20  Final  Title,  §  7,  Eevised  Statutes  of  1895. 

21  Art.    4307. 

22  Art.  4615. 

2.'{  9  L.  T.  718;  Rev.  Stats.  1895,  art.  618. 


WHO  MAY  TAKE  ACKNOWLEDGMENTS.  324 


CHAPTER  XX. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PROOF— 
NOTARIES. 

§  768.     Notaries  generally. 

§  TfiD.     Character — De  facto  and  de  jure  officers. 

§  770.     Eligibility. 

§  771.     Appointment   and    qualification. 

§  772.     Sufficient   designation— "N.  P." 

§  773.     Jurisdiction    and    authority. 

§  774.     Seals. 

§  775.  Summary  of  statutes — Times  when  notaries  were  au- 
thorized to  act. 

§  776.  Decree  of  November  13,  1835 — First  and  second  judges 
ex-officio  notaries. 

§  777.  Decree  of  January  20,  1836 — Primary  judges  ex-officio 
notaries. 

§  778.     Constitution  of  1836 — Laws  remain  in  force. 

§  779.  Act  of  December  20,  1836— Chief  justices  of  county 
courts  ex-officio  notaries. 

§  780.  Other  notaries  not  authorized  to  take  acknowledg- 

ments. 

§  781.  Chief  justices  continued  to  act. 

§  782.  Act  of  June  12,  1837 — Associate  justices  might  act 
when. 

§  783.     Act  of  November  16,  1837— Notaries  provided  for. 

§  784.     Act  of  May  15,  1838— Notaries  provided  for. 

§  785.     Act  of  January  19,  1839— Notaries  omitted. 

§  786.  Act  of  January  26,  1839— Chief  justices  of  county 
courts  authorized  to  exercise  powers  of  notaries. 

§  787.  Act  of  February  5,  1840 — Notaries  authorized  to  take 
acknowledgments. 

§  788.     Act  of  January  22,  1841— Associate  justices  to  act  when. 

§  789.     Act  of  February  3,  1841 — Notaries  omitted. 

§  790.     Act  of  February  5,  1841— Validates  want  of  authority. 

§  791.     Act  of  January  3,  1842 — Associate  justices  to  act  when. 

§  792.  Act  of  February  5,  1844,  January  10,  1845 — Notaries 
provided  for. 

§  793.     Resolution  of  February  1,  1845— Notaries  provided  for. 

§  794.     Constitution   of   1845— Notaries   provided  for. 

§  795.  Act  of  April  30,  1846— Notaries  authorized  to  take  ac- 
knowledgments of  married  women. 

§  796.  Act  of  May  12,  1846— Authorized  notaries  to  take  ac- 
knowledgments. 


325  NOTARIES    (PUBLIC.  §  768 

§  797.     Act  of  Mav  13,   1846 — Notaries  provided  for. 

§  798.  Act  of  March  16,  1846  — Acknowledgments  taken  by 
chief  and  associate  justices  have  same  force  as  no- 
taries. 

§  799.  Act  of  December  29,  1849— County  commissioners  to 
perform  duties  of  chief  justices. 

§  800.     Act  of  February  9,  1860 — Validates  want  of  authority. 

§  801.  Act  of  April  6,  1861,  January  14,  1862,  March  5,  1863, 
November  13,  1866— Notaries  authorized  to  take  ac- 
knowledgments. 

§  802.     Constitution  of  1869— Justices  commis:.i  '  ^d  notaries. 

§  803.  Act  of  August  8,  1870— Notaries  author,  .ed  to  take  ac- 
knowledgments. 

§  804.  Act  of  August  13,  1870— Justices  and  their  deputies 
authorized. 

§  805.     Act  of  August   13,  1870— Validates. 

§  806.  Act  of  May  6,  1871 — Notaries  authorized  to  act  beyond 
state. 

§  807.     Act  of  May  31,  1871— Authority  of  deputy  justices  re- 
voked. 
§§  808-810.     Act   of  April  27,   1874,  May  2,  1874,  March   13,   1875- 
Validates  want  of  authority. 

§  811.  Constitution  of  1875— Notaries  provided  for  and  jus- 
tices   of    the   peace   ex-officio   notaries. 

§  812.  Act  of  June  24,  1876 — Notaries  authorized  to  take  ac- 
knowledgments. 

§  813.     Act  of  June  26,  1876— Office  of  notary  public  abolished. 

§  814.     Act  of  July  28,  1876— Validates. 

§  815.     Act  of  August  17,  1876 — Justices  commissioned  notaries. 

§  816.     Act  of  April  11,  1879— Notaries  provided  for. 

§  817.  Act  of  April  18,  1879— Validates  certificates  with  de- 
fective seals. 

§  818.     Revised  Statutes  of  1879— Justices  ex-officio  notaries. 

§  819.  Act  of  April  1,  1881  — Notaries  authorized  to  take  ac- 
knowledgments. 

§  820.     Act  of  February  20,  1885 — Notaries  provided  for. 

§  821.     Act  of  April  1,  1887— Validates  acts  of  William  Veal. 

§  822.     Act  of  April,  1889— Notaries  provided  for. 

§  823.     Revised  Statutes  of  1895— Justices  ex-officio  notaries. 

§  824.     Notaries  authorized  to  take  acknowledgments. 

§  824a.  Act  of  April  1,  1903— Notaries  provided  for. 

For  authority  of  notaries  prior  to  1836,  see  ante,  §  6. 

§  768.  Notaries— Generally. — While  the  office  of  notary 
public  existed  prior  to  the  establishmeiit  of  provisional 
government,  November  13,  1835,*  and  the  registration 

1   See   chapter   1. 


§  769  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  326 

act  of  December  30, 1836,  no  provision  was  made  by  this 
act  for  the  continuance  of  such  office  except  that  chief 
justices  of  the  county  court  were  constituted  ex-officio 
notaries  public.  The  act  of  November  16,  1837,  was  the 
first  to  authorize  the  appointment  of  notaries;  and 
while  it  seems  that  during  that  interval,  and  also  from 
January  19,  1839,  to  February  5,  1841,  notaries  were  not 
authorized  to  take  acknowledgments  and  proofs  of  in- 
struments '  r  writing  for  record,^  such  unauthorized  ac- 
knowledgii:.  uts  and  registrations  have  since  been  cured 
by  the  validating  statute  of  February  5,  1841,  and  Feb- 
ruary 9,  1860,  except  in  cases  where  vested  rights  would 
be  affected.  The  earlier  cases  construe  this  act  (Feb- 
ruary 5,  1841)  more  liberally  than  the  later.  In  Butler 
V.  Dunagan^  it  is  held  that  section  20  applies  to  instru- 
ments previously  recorded;  and  that  while  section  21 
in  terms  applies  to  instruments  thereafter  made  and  re- 
corded, it  should  be  liberally  construed  so  as  to  also 
include  instruments  made  and  acknowledged  before  the 
passage  of  said  act  but  not  recorded  until  afterward. 
This  is  followed  also  by  the  court  in  Waters  v.  Spof- 
ford."*  But  in  a  later  case  by  the  civil  court  of  appeals,® 
this  construction  is  disapproved,  the  court  holding  that 
there  is  no  provision  for  validating  the  acknowledg- 
ment of  instruments  made  anterior  to  the  passage  of 
the  act,  and  not  recorded  until  after  the  said  act,  the 
whole  object  and  intent  of  the  law  being  to  render  legal 
the  registry  of  instruments  made  before  the  passage  of 
the  act,  and  to  provide  for  the  acknowledgment  and 
proof  and  proper  registration  of  instruments  executed 
after  the  passage  of  the  act.^ 

§  769.     Character — De  Facto  and  de  Jure  Officers. — A  no- 
tary is  an  officer  whose  duties  in  part  are  to  take  ac- 

2  McCelvey  v.  Cryer   (Tex.  Civ.  App.),  28  S.  W.  695. 

3  19   Tex.   565. 

4  58   Tex.   122. 

5  McCelvey  v.  Cryer   (Tex.  Civ.  App.),  28  S.  W.  691. 

6  See,   also,   Beaumont   Pasture   Co.   v.   Preston   &   Smith,   65   Tex. 
456;  Stramler  v.  Coe,  15  Tex.  213;  and  Validating  Statutes,  chapter  28. 


327  •        NOTAEIES    PUBLIC.  §§  770,  771 

knowleclgments  and  proof  of  instruments  of  writing  for 
registration.  A  notary  is  a  public  officer,  and  if  he  is 
a  de  facto  officer  though  not  a  de  jure  officer,  his  acts 
cannot  be  collaterallY  attacked.''  But  where  a  notary's 
term  expires,  he  ceases  to  be  a  de  facto  officer,  and  his 
acts  have  no  more  force  than  those  of  private  citizens.^ 
The  signature  of  a  notary  having  been  proven,  and  his 
official  character  as  notary  being  only  collaterally  in- 
volved in  the  issue,  it  is  sufficient  to  show  by  parol  evi- 
dence that  he  was  acting  as  notary.^  But  parol  evidence 
is  not  admissible  to  show  official  character  if  directly 
in  issue. ^^  A  notary  who  accepts  an  incompatible  office 
is  not  a  de  facto  notary.*^  It  is  held  that  a  de  facto 
female  notary  may  take  an  acknowledgment.^^ 

§  770.  Eligibility. — The  constitution  and  statutes 
seem  to  make  no  restrictions  as  to  age  or  sex  or  citizen- 
ship of  notaries.  Under  the  common  law  a  minor  could 
be  a  notary.*^ 

§  771.  Appointment  and  Qualification. — In  Texas  they 
are  appointed  by  the  Chief  Executive  with  the  advice 
and  consent  of  the  Senate.  In  some  cases  with  the  ad- 
vice and  consent  of  two-thirds  of  the  Senate. ^^  Under 
the  act  of  May  13,  1846,  amended  by  the  act  of  March  5, 
1863,  requiring  the  appointment  of  notaries  to  be  with 
the  advice  and  consent  of  the  Senate,  their  appointment 
without  such  advice  and  consent  of  the  Senate  would 

7  Keeney  v.  Leas,  14  Iowa,  464;  Hamilton  v.  Pitcher,  53  Mo.  334; 
Kunmengeiser  v.  Juncker,  28  La.  Ann.  678;  Bullene  v.  Garrison,  1 
Wash.  Ter.  587. 

8  McKeller  v.  Peck,  39  Tex.  381. 

9  Stooksberry  v.  Swann,  12  Tex.  Civ.  App.  66,  34  S.  W.  369. 

10  Gulf,  Colorado  &  S.  F.  R.  R.  Co.  v.  Carter,  5  Tex.  Civ.  App.  678, 
24  S.  W.  1083;  Stone  v.  Sledge  (Tex.  Civ.  App.),  24  S.  W.  697; 
Looney  v.  Adamson,  48  Tex.  619. 

11  Biencourt  v.  Parker,  27  Tex.  562. 

12  Third  Nat.  Bank  of  Chattanooga  v.  Smith,  Tenn.  Ch.  App. 
1102;  ante,  §  585. 

13  United  States  v.  Bixby,  10  Bliss,  523. 

14  See  post,   §§   783-822. 


§§772,773     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  328 

be  inoperative,*^  and  the  constitution  of  1869  requiring 
justices  of  the  peace  to  be  commissioned  notaries  public 
did  not  repeal  the  above  act  authorizino-  the  appoint- 
ment of  notaries  nor  aliolish  such  office.*^  The  act  of 
May  2,  1874,  validated  acknowledgments  previously 
taken  by  notaries  duly  appointed  by  the  executive 
though  not  confirmed  by  the  Senate/''  As  the  subse- 
quent laws  require  the  appointment  of  notaries  to  be 
with  the  advice  and  consent  of  the  Senate,  without 
such  ratification  by  the  Senate,  their  official  acts  would 
be  inoperative.** 

§  772.     Suflacient  Designation "N.   P."  is  a  suificient 

designation  of  the  official  character.*^  A  certificate  by 
a  primary  judge,  as  such,  who  is  ex-officio  notary  pub- 
lic, but  does  not  sign  as  notary,  is  valid.^** 

§  773.  Jurisdiction  and  Authority. — A  notary's  jurisdic- 
tion does  not  extend  beyond  the  limits  of  the  county  for 
which  he  was  appointed,^*  but  it  has  been  held  that  a 
record  would  not  be  rendered  invalid  as  notice  by  show- 
ing that  the  deed  was  acknowledged  before  a  notary  out- 
side of  his  county.^^  It  has  been  held  that  a  notary 
may  correct  mistakes  while  in  office;  even  that  the  cer- 
tificate of  acknowledgment  of  a  married  woman  may  be 
corrected  if  she  has  not  in  the  meantime  withdrawn 
her  consent.^^  A  later  case  held  that  the  certificate 
to  a  deed  of  a  married  woman  cannot  be  amended  by 
the  officer  after  it  has  passed  out  of  his  hands,  without 

15  Brown  v.  State,  43  Tex.  478. 

16  Id.;   Gilleland  v.  Drake,  36  Tex.  676. 

17  Brown  v.  State,  43  Tex.  478.  See  "De  Facto  Officers,"  ante, 
§  585;  Validating  Statutes,  chapter  28. 

18  Brown  v.  State,  43  Tex.  478. 

19  Glenn  v.  Ashcroft,  2  U.  C.  449. 

20  Wilson  V.  Simpson,  68  Tex.  313,  4  S.  W.  839. 

21  Beaumont  Pasture   Co.   v.  Preston   &   Smith,   65   Tex.  456. 

22  Peterson  v.  Lowery,  48  Tex.  412.  See  "Presumptions,"  ante,  §| 
114,  595. 

23  McKeller  v.  Peck,  39  Tex.  381. 


329  XOTAEIES    PUBLIC.  §§  774-776 

re-examination   but   it   was   reversed   by   the   supreme 
eourt.^ 

§  774.  Seals. — No  certificate  of  acknowledgment  of  a 
notary  public  is  valid  without  the  notarial  seal.  No 
other  seal  will  supply  the  omission.^^  But  an  irregular 
notarial  seal  will  be  sufficient.^^ 

§  775.  Summary  of  Statutes — Times  When  Notaries  Were 
Authorized  to  Act. — From  the  following  statutory  enact- 
ments it  seems  that  from  December  20,  1836,  to  March 
17,  1841,  notaries  were  not  authorized  to  take  any  ac- 
knowledgments; from  March  17,  1841,  to  Eevised  Stat- 
utes of  1895,  they  were  authorized  to  take  single  ac- 
knowledgments within  the  state;  from  February  3,  1841, 
to  March  17,  1841  (act  of  February  5,  1841),  notaries 
were  not  authorized  to  take  married  women's  acknowl- 
edgments; from  March  17,  1841  (the  taking  effect  of 
the  act  of  February  5,  1841),  to  June  22,  1846,  there  is 
some  question  as  to  the  authority  of  notaries  to  take  the 
acknowledgments  of  married  women;  from  June  22, 
1846,  to  Revised  Statutes  of  1895,  notaries  were  author- 
ized to  take  both  joint  and  single  acknowledgments 
within  the  state ;  from  May  6,  1871,  to  Revised  Statutes 
of  1895,  notaries  public  were  authorized  to  take  both 
single  and  joint  acknowledgments  without  the  state  of 
Texas. ^'^  In  many  instances  the  want  of  authority  was 
cured.^^ 

§  776.  Decree  of  November  13,  1835— First  and  Second 
Judges  Ex-Officio  Notaries. — Under  the  provisional  govern- 

24  Stone  V.  Sledge  (Tex.  Civ.  App.),  24  S.  W.  697,  and  87  Tex. 
49,  47   Am.   St.   Rep.   65,   26   S.   W.   1069. 

25  McKeller  v.  Peck,  39  Tex.  387. 

26  Muncie  Nat.  Bank  v.  Brown,  112  Ind.  477,  14  N.  E.  358.  See 
"Seals,"  chapter  13;  "Ex-Officio  Notaries,"  ante,  §  586;  "Chief 
Justices  of  the  Count}^  Court,"  chapter  22;  "Justices  of  the  Peace," 
chapter  21. 

27  For  authority  without  the  state,  sec  ante,  §§  718-767. 

28  See  chapter  28,  and  §§  790,  800,  805,  808,  809,  810,  814,  817,  821. 


§§  777-780      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  330 

nient  established  November  13,  1835,  the  judiciary  con- 
sisted of  the  first  and  second  judge,  the  latter  to  act 
only  in  the  absence  of  the  first,  was  made  a  court  of  rec- 
ord for  conveyances,  and  was  constituted  the  notary 
public.^^ 

§  777.  Decree  of  January  20,  1836 — Primary  Judges  Ex- 
Officio  Notaries— The  decree  of  January  20,  1830,^^  of 
the  provisional  government  made  primary  judges  ex- 
officio  notaries  public. 

§  778.  Constitution  of  March  17,  1836 — Laws  Eemain  in 
Force. — The  constitution  of  the  republic  of  Texas 
adopted  March  17,  1836,  provided  that  the  laws  then  in 
force  shall  remain  in  force  until  declared  void,  repealed, 
altered  or  expired  by  their  own  limitation.^^ 

§  779.  Act  of  December  20,  1836— Chief  Justices  of  County 
Courts  Ex-Officio  Notaries  Public. — By  the  act  of  December 
20,  1836  (taking  effect  from  passage),^^  the  first  general 
registration  law  under  the  republic,  no  provision  was 
made  for  the  appointment  of  notaries  except  that  this 
act  made  the  chief  justices  of  the  several  county  courts 
ex-officio  notaries  public,  and  authorized  them  to  re- 
ceive proof  or  acknowledgment  of  instruments, 

§  780.  Other  Notaries  not  Authorized  to  Take  Acknowl- 
edgments— Other  notaries  were  not  authorized  to  take 
acknowledgments,  at  least  until  the  act  of  November 
16,  1837,  and  probably  not  until  the  act  of  February  5, 
1841,  took  effect,  but  the  registration  (prior  to  February 
5,  1841,  and  February  9,  1860),  of  instruments  acknowl- 
edged before  notaries  was  validated  by  acts  of  February 
5,  1841,^^  and  February  9,  1860,^^  except  as  to  vested 

29  Prov.  Gov.,  arts.  5,  6;  H.  D.  18;  1  L.  T.  910. 

30  1  L.  T.  1040,  1045. 

31  1  L.  T.  1074. 

32  1  L.  T.  1215;  H.  D.  2588. 

33  Post,  §§  1018-1021. 

34  Post,  §§  1024-1037. 


331  NOTAEIES    PUBLIC.  §§  781-783 

riglits,^^  and  except  as  to  married  women's  deeds  made 
after  the  act  of  February  3,  1841,^^  thouo-h  the  acknowl- 
edgment without  registration  was  not.^''  The  earlier 
cases,  however,  hold  in  effect,  that  the  acknowledgments 
were  validated,  or  that  it  applied  to  deeds  previously 
acknowledged  but  not  recorded  until  after  the  act  of 
February  5,  1841.^* 

§  781.  Chief  Justices  Continued  to  Act. — It  seems  that 
chief  justices  of  county  courts  continued  to  be  ex-officio 
notaries,  at  least  until  the  act  of  May  13,  1846,  took 
effect,^^  and  probably  until  December  81,  1866,  when 
the  county  court  was  presided  over  by  a  county  judge.*^ 

§  782.  Act  of  June  12,  1837 — Associate  Justices  Might  Act 
When — Under  the  act  of  June  12,  1837,^^  either  of  the 
associate  justices  of  the  county  court  might  act  as  notary 
if  the  chief  justices  were  interested,  absent  or  unable  to 
act. 

§  783.  Act  of  November  16,  1837— Notaries  Provided  For. 
The  act  of  November  16,  1837  (taking  effect  from  pas- 
sage),"*^ was  the  first  act  under  the  republic  to  provide 
for  the  appointment  of  notaries.  It  provided  that  the 
President  shall  appoint,  with  the  advice  and  consent 
of  the  Senate,  a  notary  for  each  port  of  entry  of  the 
republic.  Under  this  act  they  are  authorized  to  per- 
form notarial  acts,  and  were  to  hold  office  for  two  years ; 
but  it  does  not  designate  what  notarial  acts  consisted 
of. 

.35  Post,  §  1006. 
36  Post,  §  1006. 
.•57   McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691. 

38  See   Butler   v.   Donag-in,   19   Tex.   565;    Waters    v.    Spofford,   58 
Tex.  122;  and  post,  §  785. 

39  Ante,  §§  662-665,  674. 

40  5  L.  T.  96. 

41  1  L.  T.  1333. 

42  1  L.  T.  1358. 


§§  784-787      WHO  MAY  TAKE  ACKNOWT^EDGMENTS.  332 

§   784.     Act  of  May  15,  1838— Notaries  Provided  For By 

the  art  of  May  15,  1838  (takins'  offeet  from  passage)  ^^ 
the  President  of  the  republic  was  authorized  with  the  ad- 
vice and  consent  of  the  Senate  to  appoint  two  notaries 
in  addition  to  the  cliief  justices  and  also  one  additional 
in  each  county. 

§  785.  Act  of  January  19,  1839— Notaries  Omitted.— The 
act  of  January  19,  1839^^  (takino-  effect  from  passaoe), 
to  better  define  the  duties  of  recorders,  and  providing  for 
the  registration  of  deeds,  etc.,  provided  that  deeds,  etc., 
shall  be  recorded,  if  acknowledged  before  the  county 
court  or  chief  justice  of  the  same,  or  before  the  clerk 
in  whose  office  such  record  is  proposed  to  be  made  (omit- 
ting notaries  public),  and  repealed  conflicting  laws. 
Under  this  act  notaries  were  not  authorized  to  take  ac- 
knowledgments,^^ But  their  acts  were  validated  in  cer- 
tain cases. '*® 

§   786.     Act  of  January  26,  1839— Chief  Justices  of  County 

Courts  Authorized  to  Exercise  Powers  of  Notaries ^Act  of 

January  26,  1839,'*'^  authorized  chief  justices  of  the 
county  court  "to  exercise  the  powers  of  notaries  public," 
but  as  the  act  of  January  19,  1839,  revoked  the  authority 
of  notaries  to  take  acknowledgments,  the  "powers  of 
notaries  public"  referred  to  in  the  act  of  January  26, 
1839,  would  probably  not  include  the  taking  of  acknowl- 
edgments.'** 

§  787.  Act  of  February  5,  1840 — Notaries  Authorized  to 
Take  Acknowledgments. — Act  of  February  5,  1840,^^  au- 

43  1  L.  T.  1480. 

44  2  L.  T.  52. 

45  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691;  Bryan  v. 
Sundburg,  5  Tex.  423;  Eogers  v.  Watrous,  8  Tex.  65,  58  Am.  Dec. 
100;  Herndon  v.  Eeed,  82  Tex.  651,  18  S.  W.  665. 

46  See  post,  §   1018,  etc. 

47  2  L.  T.  91;  P.  D.  265;  ante,  §  610. 

48  See  ante,  §   785. 

49  p.  D.  4975;  H.  D.  2768;  2  L.  T.  328. 


333 


NOTARIES   PUBLIC.  §§  788-792 


thorized,   among  other  officers,   a  notary  public  of  a 
county  to  take  acknowledgments  of  any  conveyance.^® 

§  788.  Act  of  January  22,  1841 — Associate  Justices  to  Act 
When. — Act  of  January  22,  1841,^^  authorized  associate 
justices  of  the  county  court  to  act  in  absence  of  chief 
justices. 

§  789.  Act  of  February  3,  1841— Notaries  Omitted. — The 
act  of  February  3,  1841,  providing  for  the  acknowledg- 
ments of  married  women,  authorized  them  to  be  taken 
by  judges  of  the  district  court  and  chief  justices  of  the 
county  court,  but  omitted  notaries.  From  then  until 
March  17,  1841,  at  least,  notaries  could  not  take  her  ac- 
knowledgments.^^ 

§  790.  Act  of  February  5,  1841— Validates  Want  of  Au- 
thority—The act  of  February  5,  1841,^^  validates  cer- 
tain acknowledgments  by  notaries,  etc.^^  It  also  pro- 
vided that  all  instruments  of  writing  might  be  duly  ac- 
knowledged or  proven  before  a  notary  public,  etc.  There 
is  some  question  as  to  whether  or  not  this  act  authorized 
notaries  to  take  acknowledgments  of  married  women, 
although  its  terms  are  general  enough  to  include  hers.^^ 

^  791.  Act  of  January  3,  1842 — Associate  Justices  to  Act 
When. — Act  of  January  3,  1842,  authorized  associate 
justices  of  county  court  to  act  in  case  of  vacancy  or  in- 
ability of  chief  justice,  etc. 


5C 


;v   792.     Acts  of  Februaiy  5,  1844,  and  January  10,  1845— 
Notaries  Provided  For. — The  acts  of  February  5,  1844^'' 

00  See  ante,  §   615. 

51  2  L.  T.  532;  11.  D.  272. 

52  See  ante,  §S  617-G27. 
5.3  2  L.  T.  633. 

54  Ante,  §  619;  also  see  "Validating  Statutes,"  post,  §   1018. 
5.-,   See  ante,  §§   627-631. 
.^0  Ante,  §  632. 
57   2  L.  T.  1017. 


§§  793-795      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  334 

(taking  effect  from  passage),  and  January  10,  1845*''* 
(taking  effect  March  15,  1845),  provide  for  the  appoint- 
ment of  additional  notaries.  The  last  act  requiring 
notaries  to  have  a  seal  of  office,  etc.,  and  they  were  au- 
thorized to  perform  all  duties  that  chief  justices  of  the 
county  court  were  required  to  perform  by  virtue  of  their 
offices  as  ex-officio  notaries  public.  They  probably  in- 
cluded the  taking  of  both  joint  and  single  acknowledg- 
ments.^^ 

§  793.  Resolution  of  February  1,  1845— Notaries  Provided 
For. — The  resolution  of  February  1,  1845,  required  the 
appointment  of  one  additional  notary  at  the  town  of 
Seguin,  in  and  for  the  county  of  Gonzales;  also  one  for 
Fort  Boggy,  in  Eobertson  county.^** 

§  794.  Constitution  of  1845 — Notaries  Provided  For. — 
Section  19^^  of  the  constitution  of  the  state  of  Texas 
adopted  August  27,  1845,  provides  that  the  governor 
with  the  advice  and  consent  of  two-thirds  of  the  Senate 
shall  appoint  a  convenient  number  of  notaries  not  ex- 
ceeding six  for  each  county  who,  in  addition  to  such 
duties  as  are  prescribed  by  law,  shall  prescribe  such 
other  duties  as  the  legislature  shall  prescribe. 

§  795.  Act  of  April  30,  1846— Notaries  Authorized  to  Take 
Acknowledgments  of  Married  Women. — The  act  of  April  30, 
1846**^  (taking  effect  June  22,  1846),  authorized  notaries 
to  take  acknowledgments  of  husband  and  wife  to  deeds 
of  her  separate  property,  the  homestead  and  other  ex- 
empt property.  It  is  also  provided  that  the  governor 
of  the  state  of  Texas  shall  appoint  the  notaries ;  he  shall 
notify  the  chief  justice  of  the  counties,  and  they  shall 
publish  the  appointment  of  notaries;  and  after  such 

58  2  L.  T.  1059. 

59  See  ante,  §  634. 

60  2  L.  T.  1106. 
Ri  2  L.  T.  1290. 
62  2  L.  T.  1462. 


335  NOTARIES    PUBLIC.  §§  796-798 

notice  or  publication  notaries  acting  under  the  republic 
shall  cease  to  discharge  the  official  duties,  and  that 
their  acts  in  such  capacity  shall  be  void,  if  done  subse- 
quent to  such  notice.  ^^ 

§  796.  Act  of  May  12,  1846— Authorized  Notaries  to  Take 
Acknowledgments. — The  act  of  May  12, 1846,^^  authorized, 
in  general  terms,  notaries  to  take  acknowledgments  of 
all  instruments,  which  would  probably  include  those  of 
married  women.*^^ 

§  797.  Act  of  May  13,  1846 — Notaries  Provided  For — 
The  act  of  May  13,  1816,^^  taking  effect  June  22,  1846, 
authorized  the  governor  with  the  advice  of  two-thirds 
of  the  Senate  to  appoint  a  convenient  number  of  notar- 
ies, not  exceeding  six  for  each  county,  who  shall  reside 
in  the  county  for  which  they  are  appointed,  and  hold 
office  for  four  years  and  until  their  successors  are  quali- 
fied. The  governor  was  authorized  to  fill  vacancies  un- 
til the  meeting  of  the  next  session  of  the  Senate  there- 
after. Notary's  permanent  removal  from  county  va- 
cates office.  Notaries  were  again  authorized  to  take 
acknowledgments  including  those  of  married  women, 
and  another  seal  was  provided  for.  This  act  was 
amended  by  the  act  of  March  5,  1863.  Under  these  acts 
appointment  of  notaries  without  the  advice  and  consent 
of  the  Senate  was  inoperative.^''  The  above  acts  were 
undisturbed  by  the  constitution  of  1869.®* 

§  798.  Act  of  March  16,  1848— Acknowledgments  Taken 
by  Chief  and  Associate  Justices  Have  Same  Force  as  Notarj^'s. 
The  act  of  March  16,  1848,*^^  provided  that  chief  justices 

63  2  L.  T.  1466. 

64  2  L.  T.  1544;  H.  D.  2794. 

65  But  see  ante,  §§  644-656. 

66  2  L.  T.  1647. 

67  Brown  v.  State,  43  Tex.  479. 

68  Gilleland  v.  Drake,  36  Tex.  676. 

69  3  L.  T.  119;  H.  D.  333. 


§§  799-801      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  336 

of  the  county  court  may  take  both  joint  and  single  ac- 
kiiowledgments,  which  shall  have  the  same  force  as  if 
taken  by  a  notary.''** 

§  799.  Act  of  December  29,  1849 — County  Commissioners 
to  Perfoim  Duties  of  Chief  Justice. — Act  of  December  29, 
1849/^  authorized  two  county  commissioners  to  perform 
duties  of  chief  justice  of  county  court  whenever  he  is 
unable  to  act.'^^ 

^  800.  Act  of  February  9,  1860— Validates  Want  of  Au- 
thority.— The  act  of  February  9,  1860,  validates  certain 
acknowledgments  by  notaries. '^^ 

§  801.  Acts  of  April  6,  1861,  January  14,  1862,  March  5, 
1863,  November  13,  1866 — Notaries  Authorized  to  Take  Ac- 
knowledgments.— The  acts  of  April  6,  1861,'''*  January 
1-1,  1862/^  March  5,  1863,''^  November  13,  1866,''''  all 
taking  effect  from  passage,  provided  that  acknowledg- 
ments within  the  state  may  be  taken  by  notaries  public. 
The  said  act  of  March  5,  1863,  further  provides  that  the 
notary's  appointment  shall  be  void  unless  he  qualifies 
within  thirty  days  after  notice,  before  the  county  court 
if  in  session,  or  before  the  county  clerk  if  in  vacation; 
and  that  notary  shall  hold  office  four  years  and  no 
longer,  thus  amending  the  act  of  May  13,  1846,  which 
required  them  to  hold  office  until  their  successors  quali- 
fied. It  is  also  provided  that  their  office  shall  become 
vacant  if  they  hold  any  other  office  except  justice  of 
the  peace.  Section  11  provides  that  acknowledgments 
taken  by  notaries  public  shall  be  received  as  evidence 
of  the  facts  therein  stated  and  in  all  courts  of  this 

70  But  see  ante,   §   675. 

71  3  L.  T.  459. 

72  See  ante,  §  682. 

73  Validating  Statutes,   post,   §    1028. 

74  5  L.   T.   373. 

75  5  L.  T.  501. 

76  5  L.  T.  602. 

77  5  L.  T.  1128. 


337  NOTAEIES  PUBLIC.  §§  802-806 

State ;  but  the  courts  hold  that  proof  of  execution  is  re- 
quired before  instruments  are  admissible  in  evidence.''* 

§  802.  Constitution  of  1869 — Justices  Commissioned  No- 
taries.— ^Chapter  3,  section  20  of  the  constitution  of 
1869  (ratified  on  the  first  Monday  in  July)/^  provided 
that  justices  of  the  peace  shall  also  be  commissioned  to 
act  as  notaries  public.  This  did  not  repeal  acts  of 
May  13,  1846,  and  March  5,  1863.*** 

§  803.  Act  of  August  8,  1870 — Notaries  Authorized  to 
Take  Acknowledgments — The  act  of  August  8,  1870,*^  au- 
thorized notaries  public  to  take  the  acknowledgments  of 
deeds,  etc.,  for  record.  It  provided  that  their  certifi- 
cates shall  entitle  the  deeds  to  registration,  and  repealed 
all  conflicting  laws. 

§  804.  Act  of  August  13,  1870 — Justices  and  Their  Dep- 
uties Authorized. — Act  of  August  13,  1870,  authorized 
justices  of  the  peace  and  their  deputies  to  act  as  no- 
taries.*^ This  was  repealed  by  act  of  May  31,  1871,  in 
so  far  as  it  authorized  deputies  to  act.*^ 


§  805.     Validates.— Act  of  August  13,  1870,  validated 
acknowledgments  taken  before  county  judges.*"* 


§  806.  Act  of  May  6,  1871 — Notaries  Authorized  to  Act  Be- 
yond the  State.— Under  the  act  of  May  6,  1871*^  (taking 
effect  from  passage),  notaries  were  for  the  first  time  au- 
thorized to  take  acknowledgments  without  the  state  of 
Texas,  as  well  as  in  the  state  of  Texas. 

78  See  ante,  §  194,  etc. 

79  7  L.  T.  414. 

80  Gilleland  v.  Drake,  36  Tex.   676. 

81  e   L.   T.   203. 

82  Ante,   §    698. 

83  Post,  §  807. 

84  See  ante,  §  701. 

85  6   L.   T.   979. 

22 


§§  807-811      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  338 

§  807.  Act  of  May  31,  1871— Authority  of  Deputy  Jus- 
tices Revoked. — The  act  of  May  31,  1871,**^  repealed  sec- 
tion 29  of  the  act  of  August  13,  1870,  authorizing  the 
appointment  of  deputy  justices  of  the  peaceL^'' 

§  808.  Act  of  April  27,  1874— Validates  Want  of  Author- 
ity.— The  act  of  April  27,  1874,®^  validated  acknowledg- 
ments taken  prior  thereto  without  the  state  but  within 
the  United  States  by  notaries,  etc.,  if  taken  in  the  man- 
ner prescribed  by  law.^^ 

§  809.  Act  of  May  2,  1874— Validates  Want  of  Authority. 
An  act  of  May  2,  1874,^^  validates  acts  of  notaries  duly 
appointed  but  not  properly  confirmed  by  the  Senate.®* 

§  810.  Act  of  March  13,  1875— Validates  Want  of  Au- 
thority— The  act  of  March  13,  1875,  taking  effect  from 
passage,®^  validated  acknowledgments  of  C.  L.  Thur- 
mond of  Victoria  county  as  notary  public. 

§  811.  Constitution  of  1875— Notaries  Provided  For,  and 
Justices  of  the  Peace  Ex-Ofiicio  Notaries. — The  constitution 
of  the  state  of  Texas  adopted  November  24,  1875,  rati- 
fied by  the  people  February  15, 1876,®^  provided  that  the 
governor,  by  and  with  the  advice  and  consent  of  two- 
thirds  of  the  Senate,  shall  appoint  a  convenient  number 
of  notaries  for  each  county,  who  shall  perform  such  du- 
ties as  now  are  or  may  be  prescribed  by  law.  Article  5, 
section  19,  provided  that  justices  of  the  peace  shall  be 
ex-ofdcio  notaries  public.'** 

86  6   L.   T.   1038. 

87  Ante,    §    704. 

88  8  L.  T.  154. 

89  See    post,    §    1041. 

90  8   L.   T.   198. 

91  Brown  v.  State,  43  Tex.  478.     See  post,  §  1045. 

92  8  L.  T.  573. 

93  8  L.  T.  779;   art.  4,   §   26. 

94  Ante,    §    708. 


339  XOTAEIES   PUBLIC.  §§  812-816 

§  812.  Act  of  June  24,  1876— Notaries  Authorized  to  Take 
Acknowledgments — The  act  of  June  24,  1876,^^  provided 
for  the  appointment  of  a  convenient  number  of  notaries, 
not  less  than  five  nor  more  than  twenty,  who  shall  hold 
office  for  two  years ;  and  provides  for  a  seal.  Notaries 
were  again  authorized  to  take  acknowledgments;  and 
it  provided  that  their  acts  shall  be  evidence  in  all  the 
courts  of  this  state. 

§  813.  Act  of  June  26,  1876— Office  of  Notary  Public  Abol- 
ished.—The  act  of  June  26,  1876,^**  provided  that  thirty 
days  after  the  passage  of  this  act  the  office  of  notary 
public  as  it  existed  prior  to  the  18th  of  April,  1876  (the 
beginning  of  that  session  of  the  legislature),  be  and  the 
same  is  hereby  abolished;  that  all  commissions  issued 
to  notaries  public  prior  to  that  time  by  virtue  of  any 
law  in  force  are  revoked,  and  shall  after  thirty  days  be 
of  no  force  and  effect,  and  the  governor  is  required  to 
proceed  to  appoint  notaries  public  under  the  existing 
laws,  without  reference  to  the  appointments  made  prior 
to  April  18,  1876. 

§  814.  July  28,  1876— Validates.— This  act  validates 
certain  certificates  of  married  women's  acknowledg- 
ments.^^ 

§  815.  Act  of  August  17,  1876 — Justices  Commissioned  No- 
taries.— The  act  of  August  17,  1876,^^  provided  that  jus- 
tices of  the  peace  shall  be  commissioned  notaries  pub- 
lic.«» 

§  816.     Act  of  April  11,  1879— Notaries  Provided  For 

The  act  of  April  11,  1879  (taking  effect  from  pas- 
sage),-*^®**  provided  for  the  appointment  of  one  notary  for 
each  unorganized  county. 

95  8    L.    T.    86.5. 

96  8  L.   T.   867. 

97  Post,   §    1049. 

98  8  L.  T.  1001,  §  28. 

99  Ante,    §    713. 

100  8  L.  T.  1389. 


§§817-821      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  340 

§  817.  Act  of  April  18,  1879— Validates  Certificates  With 
Defective  Seals. — The  act  of  April  18,  1879,  validates  cer- 
tificates having  defective  seals.^*^ 

§  818.  Revised  Statutes  of  1879— Justices  Ex-Officio  No- 
taries.— Revised  Statutes  of  1879,  article  1535,  provided 
that  justices  of  the  peace  shall  be  ex-oflficio  notaries 
public.*^^ 

§  819.  Act  of  April  1, 1881 — Notaries  Authorized  to  Take  Ac- 
knowledgments.— ^The  act  of  April  1,  1881*^^  (taking 
effect  from  passage),  authorized  the  governor,  with  the 
consent  of  two-thirds  of  the  Senate,  to  appoint  not  less 
than  five  nor  more  than  twenty  notaries  for  each  county, 
who  shall  hold  their  oflSces  two  years  from  June  1st  of 
the  year  in  which  they  are  appointed,  and  provided  for 
seal.  They  are  again  authorized  to  take  acknowledg- 
ments. This  act  provided  that  all  laws  and  parts  of 
laws  in  conflict  herewith  are  hereby  repealed. 

§  820.  Act  of  February  20,  1885— Notaries  Provided  For. 
The  act  of  February  20,  1885,^**^  amending  act  of  April 
1,  1881,  provides  that  the  governor,  by  and  with  the  con- 
sent of  the  Senate,  shall  appoint  a  convenient  number 
of  notaries,  whose  term  of  office  shall  be  two  years,  and 
that  the  terms  of  office  of  notaries  now  holding  office 
shall  expire  on  the  first  day  of  June,  1885,  and  that 
notaries  during  the  present  and  all  biennial  sessions  of 
the  legislature  shall  hold  their  office  from  June  1st  of 
the  year  of  appointment.^^^ 

§  821.  Act  of  April  1,  1887— Validates  the  Acts  of  William 
Veal. — The  act  of  April  1,  1887,  validates  the  acts  of 
William  Veal.^**^ 

101  See  post,  §  1052. 

102  Ante,  §  714. 

103  9   L.   T.   186.  : 

104  9  L.  T.  637. 

105  Brown  v.  State,  43  Tex.  478. 

106  See  post,  §   1068. 


341  NOTARIES  PUBLIC.  §§  822-824a 

§  822.  Act  of  April,  1885 — Notaries  Provided  Por — The 
act  of  April,  1885,***''  which  is  in  force  at  the  present 
time,  is  as  follows:  "There  shall  be  appointed  by  the 
governor  by  and  with  the  advice  and  consent  of  the 
Senate,  a  convenient  number  of  notaries  public  for  each 
organized  county  and  one  for  each  unorganized  county 
in  this  state,  who  shall  hold  their  offices  for  the  term 
of  two  years  from  the  first  day  of  June  after  appoint- 
ment at  -a  regular  session  of  the  legislature ;  provided 
that  nothing  herein  shall  be  so  construed  as  to  exempt 
them  from  jury  service." 

§  823.  Revised  Statutes  of  1895— Justices  Ex-Officio  No- 
taries.— "Article  1564.  Justices  of  the  peace  shall  be 
ex-officio  notaries  public."**^ 

§  824.  Revised  Statutes  of  1895*o9_jjotaries  Authorized 
to  Take  Acknowledgments. — Kevised  Statutes  of  1895,  ar- 
ticle 4613 :  "The  acknowledgment  or  proof  of  an  instru- 
ment of  writing  for  record  may  be  made  within  this 
state  before  either, 

"1.  A  clerk  of  the  district  court. 

"2.  A  judge  or  clerk  of  the  county  court. 

"3.  A  notary  public."**^ 

§  824a.  Act  of  April  1,  1903— Notaries  Provided  For. — 
The  act  of  April  1,  1903***  (taking  effect  from  passage), 
authorized  the  appointment  by  the  governor,  with  the 
advice  and  consent  of  the  Senate,  of  a  convenient  num- 
ber of  notaries  public  for  each  organized  county,  and 
not  to  exceed  six  notaries  public  for  each  unorganized 
county. 

107  Rev.   Stats.,   art.   3.503;   9  L.   T.   637. 

108  Ante,    §    715. 

109  Act  of  May  6,  1871;  P.  D.  7418. 

110  See  ante,   §  717. 

111  Acts  of  1903,  p.  158. 


825  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  342 


CHAPTER  XXI. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PEOOF— JUS- 
TICES OF  THE  PEACE. 

§  825.     Generally. 

§  826.     Summary  of  statutes. 

§  827.     Act  of  December  20,  1836— Justices   of  peace,  associate  jus- 
tices  of   county   court. 

§  828.     Act    of   February    5,    1840 — Two   justices   of   the    peace    may 
take  acknowledgments. 

§  829.  Two    justices   must    act    together. 

§  830.     Act  of  March  16,  1840— Common  law  adopted. 

§  831.     Act  of  February  3,  1841— Justices  omitted. 

§  832.     Act  of  February  5,  1841 — Justices  of  peace  omitted. 

§  833.     Act   of   April  30,   1846 — Justices   of  the  peace   omitted. 

§  834.     Act  of  May  11,  1846— Election  of. 

§  835.     Act  of  May  12,  1846— Justices  of  peace  omitted. 

§  836.     Constitution  of  1869 — Justices  commissioned  to  act  as  notar- 
ies. 

§  837.     Act    of   August   13,   1870 — Justices    authorized    to    take    ac- 
knowledgments. 

§  838.  Justices  authorized  to  appoint  deputies. 

§  839.     Act  of  May  6,  1871 — Justices  omitted. 

§  840.     Act  of  May  18,  1871— Validates. 

§   841.     Act  of  May  25,  1871  — Validates. 

§  842.     Act  of  May  31,  1871— Validates. 

§  843.     Act  of  April  14,  1874— Validates. 

§  844.     Act  of  April  20,  1874 — District  clerks  authorized  to   qualify 
as  justices. 

§  845.     Act   of  April,   1876 — Justices— Appointment  of. 

§  846.     Constitution  of  1875 — Justices  of  the  peace  shall  be  ex-oflficio 
notaries. 

§  847.     Act  of  July  28,  1876— Validates. 

§  848.     Act  of  August  17,  1876 — ^Justices  commissioned  notaries. 

§  849.     Act  of  April  18,  1879— Validates. 

§  850.     Eevised  Statutes  of  1879 — Justices  commissioned  notaries. 

§  851.     Revised   Statutes  of   1895 — Justices   commissioned   notaries. 
For  authority  prior  to  1836,  see  ante,  §§  7-21. 
For  acknowledgments  without  the  state,  see  ante,  §§  718-767. 

§  825.  Generally. — Acknowledgments  taken  by  a  jus- 
tice of  the  peace  as  an  ex-officio  notary  public  must  be 
authenticated  with  a  notary's  seal  to  authorize  its  rec- 


343  JUSTICES  OF  THE  PEACE.  §§  826-828 

ord;  and  the  letters  "J.  P."  evidently  mean  justice  of 
the  peace/  It  is  not  necessary  for  a  justice  of  the 
peace  to  sign  as  notary  public,^ 

§  826.  Summary  of  Statutes. — From  the  following  stat- 
utes it  appears  that  the  first  act  authorizing  justices  of 
the  peace,  as  such,  to  take  acknowledgments  was  that 
of  February  5,  1840,  which  required  two  justices  to  act. 
Thereafter  they  were  authorized  to  take  single  acknowl- 
edgments within  the  state  until  July  13,  1846.  From 
July  13,  1846,  to  the  ratification  of  the  constitution  of 
1869  (on  the  first  Monday  in  July),  they  were  not  au- 
thorized to  take  acknowledgments,  but  at  all  times 
thereafter,  within  the  state,  they  were.  From  February 
5,  1840,  to  the  adoption  of  the  common  law  March  16, 
18^0,  they  were  authorized  to  take  acknowledgments  of 
married  women  within  the  state.  From  March  16, 
1840,  to  the  ratification  of  the  constitution  of  1869,  they 
were  not  authorized  to  take  acknowledgments  of  mar- 
ried women  within  the  state.  At  all  times  thereafter 
they  were. 

§  827.  Act  of  December  20,  1836— Justices  of  Peace,  As- 
sociate Justices  of  County  Court. — The  act  of  December  20, 
1836,*  made  chief  justices  of  the  county  court  ex-officio 
notaries  public,  and  provided  that  two  associate  justices 
shall  be  selected  by  a  majority  of  the  justices  of  the 
peace  from  among  their  number;  and  the  act  of  June 
12,  1837,*  authorized  associate  justices  to  act  as  notaries 
in  case  of  inability  of  the  chief  justices. 

§  828.  Act  of  February  5,  1840— Two  Justices  of  the  Peace 
may  Take  Acknowledgments. — The  act  of  February  5,  1840, 
taking  effect  March  16,  1840,^  provided  that  "any  deed, 

1  Dauffherty  v.  Yates  (Tex.  Civ.  App.),  35  S.  W.  93>J. 

2  Wilson  V.  Simpson,  68  Tex.  313,  4  S.  W.  839. 

3  Ante,  §§  597-599. 

4  Ante,  §  603. 

5  2  L.  T.  328. 


§§  829-831      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  344 

etc.,  may  bo  admitted  to  record  upon  the  certificate  un- 
der seal  of  any  two  Justices  of  the  Peace  for  the  county 
in  this  Republic,  annexed  to  such  deeds  and  to  the  fol- 
lowino;   effect  to  wit:  Republic   of  Texas,   County   of 

.     We,  A.  B.  and  C.  D.,  Justices  of  the  Peace,  in 

the  county  aforesaid,  do  hereby  certify  that  E.  F.  and 
party  (E.  G.  and  G.  M.,  parties)  to  a  certain  deed  bear- 

inci:  date  on  the day  of and  hereto  annexed, 

personally  appeared  to  us  in  our  county  aforesaid  and 
acknowledo-ed  the  same  to  be  his  or  their  act  or  deed 
and  desired  us  to  certify  the  said  acknowledgment.     To 

the  clerk  of  the  county  of in  order  that  said 

deed  may  be  recorded. 

"Given  under  our  hands  and  seal  this  day  of 


"A.  B.  (L.  S.) 

"0.   D." 
(Note. — This  act  was  no  doubt  repealed  by  the  act  of 
May  12,  1846.f 

§  829.  Two  Justices  Must  Act  Together. — Under  a  stat- 
ute similar  to  this  in  the  state  of  Maryland,  authoriz- 
ing acknowledgments  by  two  justices  of  the  peace  it  was 
held  that  they  must  act  together,  and  that  if  the  ac- 
knowledgment is  taken  at  different  times  by  said  jus- 
tices of  the  peace,  it  is  invalid.'^ 

§  830.  Act  of  March  16,  1840— Common  Law  Adopted. — 
Act  of  March  16,  1840,^  adopted  common  law,  after 
which  married  women  could  only  convey  by  fine  and  re- 
covery until  February  3,  1841.^ 

§  831.  Act  of  February  3,  1841— Justices  Omitted. — The 
act  of  February  3,  1841,^<*  authorizing  district  judges 

6  Ante,  §§   615-646. 

7  Eidgley  v.  Howard,  3  Har.  &  McH.  (Md.)  321. 

8  2  L.  T.  177. 

9  Langton  v.  Marshall,  59  Tex.  299. 

10  2  Jj.  T.  608. 


345  JUSTICES  OF  THE  PEACE.  §§  832-835 

and  chief  justices  of  the  county  court  to  take  the  joint 
acknowledgment  of  husband  and  wife,  omitted  justices 
of  the  peace.  As  this  act  provides  the  only  method  in 
which  a  written  conveyance  can  be  made  by  a  married 
woman,  it  seems  that  justices  of  the  peace  were  unau- 
thorized to  take  acknowledgments  thereunder.*^ 

§  832.  Act  of  February  5,  1841 — Justices  of  Peace  Omitted. 
The  act  of  February  5,  1841,*^  authorizing  certain  of- 
ficers to  take  acknowledgments,  omitted  justices  of  the 
peace,  but  it  is  doubtful  if  this  repeals  the  former  law  of 
February  5,  1840,  which  authorized  two  justices  of  the 
peace  to  take  acknowledgments.*^ 

§  833.  Act  of  April  30,  1846— Justices  of  the  Peace 
Omitted— The  ar-t  of  April  30,  1846,  authorized  district 
judges  and  judges  of  the  supreme  court  and  notaries 
public  to  take  the  joint  acknowledgments  of  husband 
and  wife,  omitting  justices  of  the  peace.** 

§  834.  Act  of  May  11,  1846— Election  of. — The  act  of 
May  11,  1846,*^  authorized  the  election  of  two  justices 
of  the  peace,  but  makes  no  provision  for  their  taking 
acknowledgments. 

§  835.  Act  of  May  12,  1846— Justice  of  Peace  Omitted. — 
The  act  of  May  12,  1846,  taking  effect  July  13,  1846,*« 
provided  that  every  instrument  of  writing  for  record 
shall  be  taken  by  some  one  of  the  following  officers: 
When  within  the  state,  before  some  notary  public  or 
clerk  of  the  county  court  of  any  county  in  the  state. 
As  justices  of  the  peace  are  omitted  from  this  act,  the 

11  See  Langton  v.  Marshall,  59  Tex.  299;  Ballard  v.  Carmichaol, 
83  Tex.  363,  18  S.  W.  734;  Berry  v.  Donley,  26  Tex.  745;  ante,  §§  241- 
243,  and  641. 

12  2  L.  T.  633;  ante,  §  581. 

13  Ante,  §§  620-627,  631. 

14  See  ante,  §  329. 
ir>   2  L.   T.   1604. 
16  2   L.   T.   1544. 


§§  836-838      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  346 

act  of  February  5,  1840,  authorizing  them  to  authenti- 
cate instruments  for  record  was  repealed. ^'^ 

§  836.  Constitution  of  1869 — Justices  Commissioned  to  Act 
as  Notaries. — The  constitution  of  1869  (ratified  on  the 
first  Monday  in  July,  1869)/*^  provided  that  justices  of 
the  peace  shall  also  be  commissioned  to  act  as  notaries 
public.  As  commissions  of  notaries  are  issued  by  the 
governor,  it  seems  that  commissions  so  issued  to  justices 
of  the  peace,  would  authorize  them  to  authenticate  in- 
struments. 

§  837.  Act  of  August  18,  1870 — Justices  Authorized  to 
Take  Acknowledgments — The  act  of  August  13,  1870,  tak- 
ing effect  fi'om  passage,^^  provided  that  "justices  of  the 
peace  shall  be  commissioned  by  the  governor  to  act  as 
justices  of  the  peace  within  respective  precincts,  and 
also  as  notaries  public."  They  shall  be  authorized  to 
take  acknowledgments  of  deeds  and  other  instruments 
required  by  law  to  be  recorded  and  certify  the  same  for 
record.^**  It  seems  that  under  this  act  and  the  con- 
stitution of  1869,  a  justice  of  the  peace  was  not  ex- 
officio  ■  notary  public  without  other  qualification,  but 
had  to  be  commissioned  to  act  as  notary  also.  The  rule 
seems  to  be  different  under  the  constitution  of  1875,  un- 
til modified  by  statute.^^ 

§  838.  Justices  Authorized  to  Appoint  Deputies. — Section 
29  of  this  act  also  authorized  justices  of  the  peace  to 
appoint  deputies  to  act  as  notaries  public.  This  section 
was  repealed  by  the  act  of  May  31,  1871,^^  and  justices 

17  Herndon  v.  Eeed,  82  Tex.  651,  18  S.  W.  665;  McCelvey  v.  Cryer 
(Tex.  Civ.  App.),  28  S.  W.  691;  Bryan  v.  Sundberg,  5  Tex.  418; 
State  V.  Deslesdenier,  7  Tex.  76;  Thouvenin  v.  Eodrigues  et  al.,  24 
Tex.  468. 

18  7  L.  T.  412;   §  20. 

19  6  L.  T.  278. 

20  Ante,  §  697. 

21  See  post,  §  846. 

22  6  L.  T.  1038. 


347  JUSTICES  OF  THE  PEACE.  §§  839-843 

were  not  thereafter  authorized  to  appoint  deputies  to 
take  acknowledgments.^^ 

§  839.  Act  of  May  6,  1871— Justices  Omitted. — The  act 
of  May  6,  1871,-"*  does  not  mention  justices  of  the  peace 
as  officers  before  whom  acknowledgments  may  be  made 
but  authorized  notaries  to  act;  as  justices  are  commis- 
sioned to  act  as  notaries,  they  were  so  authorized  by 
implication.  It  is  also  clear  that  this  act  does  not  re- 
peal the  act  of  Augiist  13,  1870,  which  directly  author- 
ized justices  of  the  peace  to  act  as  notaries.^^ 

§  840.  Act  of  May  18,  1871— Validates — The  act  of  May 
18, 1871  (taking  effect  from  passage),^^  validates  the  acts 
of  Silas  McCrary,  Jerry  Washington,  justices  of  the 
peace  for  Bowie  county. 

§  841.  Act  of  May  25,  1871— Validates— The  act  of  May 
25,  1871  (taking  effect  from  passage),^''  validated  the 
acts  of  I.  H.  Steen,  justice  of  the  peace  of  Hamilton 
county. 

§  842.  Act  of  May  31,  1871— Validates.— The  act  of  May 
31,  1871  (taking  effect  from  passage),  validated  the  acts 
of  I.  A.  Lee,  justice  of  the  peace  of  Coryell  county.^^ 

§  843.  Act  of  April  14,  1874— Validates. — The  act  of 
April  14,  1874^^  (taking  effect  from  passage),  validates 
the  official  acts  of  clerks  of  the  district  court  acting  as 
justices  of  the  peace  by  virtue  of  the  election  held  De- 
cember 2,  1873. 

23  Ante,  §§  697-704. 

24  6  L.  T.  999. 

25  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665. 
20  6  L.  T.  998. 

27  6  L.  T.  1033. 

28  6  L.  T.  1066. 

29  8  L.  T.  94. 


§§  844-847      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  348 

§  844.  Act  of  April  20,  1874 — District  Clerks  Authorized 
to  Qualify  as  Justices. — The  act  of  April  20,  1874,^**  pro 
yided  that  it  shall  bo  lawful  for  snch  clerks  of  the  dis- 
trict court  as  were  elected  justices  of  the  peace  of  their 
respective  counties  at  the  late  general  election  to  hold 
office  of  justices  of  the  peace  upon  giving  bond,  etc. 

§  845.  Act  of  April  11,  1876 — Justices,  Appointment  of. — 
The  act  of  April  11,  1876,^^  county  commissioners  in 
county  in  which  unorganized  counties  are  attached  have 
power  to  appoint  justices  of  the  peace  for  such  counties 
in  accordance  with  the  provisions  for  organized  counties. 

§  846.  Constitution  of  1875 — Justices  of  the  Peace  Shall 
be  Ex-Officio  Notaries  Public. — The  constitution  of  1875, 
ratified  February  15,  1876,^^  provided  that  "justices  of 
the  peace  shall  be  ex-officio  notaries  public."  It  would 
seem  that  under  this  constitution  the  qualifying  as  jus- 
tice of  the  peace  would  authorize  him  to  act  as  notary 
without  other  qualification,  at  least  until  the  statutes 
required  additional  qualifications.  It  is  held  in  Berry 
V.  McAdams  ^^  that  a  lien  given  by  the  constitution 
was  lost  by  the  owner  not  fixing  and  recording  same  in 
compliance  with  a  subsequent  statute.  By  analogy  it 
would  seem  that  the  legislature  might  require  certain 
qualifications  of  justices  before  they  could  act  as  no- 
taries, as  it  did  in  article  1535  of  the  Revised  Statutes 
of  1879  and  article  1564  of  the  Revised  Statutes  of  1895. 
But  the  legislature  can  act  only  when  the  constitution  is 
silent.^ 

§  847.  Act  of  July  28,  1876— Validates. — The  act  of 
July  28,  1876  (taking  effect  November  19,  1876),^^  vali- 
dates the  certificates  of  acknowledgment  of  married 

30  8  L.  T.  111. 

31  8  L.  T.  138&. 

32  Article  5,   §   19. 

33  93  Tex.  435,  55  S.  W.  1112. 

34  Titus  V,  Latimer,  5  Tex.  436;   1  Rose's  Notes,  194. 

35  8  L.   T.   897. 


349 


JUSTICES  OF  THE  PEACE.  §§  848-851 


women  taken  before  any  unauthorized  officer  whenever 
such  certificate  of  acknowledgment  is  invalid,  because 
same  is  wanting-  in  some  word  required  by  law,  pro- 
vided that  such  certificate  shall  show  on  its  face  that 
the  married  woman  was  examined  by  the  officer  taking 
the  acknowledgment  separate  and  apart  from  her  hus- 
band, and  having  the  same  fully  explained  to  her  she 
declared  that  she  had  willingly  signed  the  same  and  that 
she  did  not  wish  to  retract  it,  or  words  to  that  effect.^^ 

§  848.  Act  of  August  17,  1876 — Justices  Commissioned  No- 
taries.-*^' — ''Section  28.  Justices  of  the  peace  shall  be 
commissioned  by  the  governor  to  act  as  justices  of  the 
peace  in  their  respective  precincts,  and  also  to  act  as 
notaries  public." 

§  849.  Act  of  April  18,  1879— Validates. — The  validat- 
ing act  of  April  18,  1879,  validates  acknowledgments 
evidenced  by  notarial  seals,  having  the  word  ''Texas" 
engraved  between  the  points  of  the  star  thereon  instead 
of  on  the  margin.^® 

§  850.  Revised  Statutes  of  1879— Justices  Commissioned 
Notaries.— Revised  Statutes  of  1879,  article  1535 :  "Each 
justice  of  the  peace  shall  be  commissioned  as  justice  of 
the  peace  of  his  precinct  and  ex-officio  notary  public  of 
his  county,  and  shall  take  the  oath  of  office  prescribed 
in  the  constitution,  and  give  the  bond  elsewhere  pre- 
scribed for  notaries  public." 

§  851.  Revised'  Statutes  of  1895 — Justices  Commissioned 
Notaries.— Revised  Statutes  of  1895,  article  1564 :  "Each 
justice  of  the  peace  shall  be  commissioned  as  justice  of 
the  peace  of  his  precinct  and  ex-officio  notary  public  of 
his  county,  and  shall  take  the  oath  of  office  prescribed  in 
the  constitution  and  give  the  bond  prescribed  by  law." 

.16  McDaniel  v.  Harold,  1  U.  C.  521. 

37  8  L.  T,  1001. 

38  See  post,  §  1052. 


WHO  MAY  TAKE  ACKNOWLEDGMENTS.  350 


CHAPTER  XXII. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS;  OFFICERS  OF  COUN- 
TY COURT,  TO  WIT,  CHIEF  AND  ASSOCIATE  JUSTICES, 
COUNTY  JUDGES,  COUNTY  COMMISSIONERS  AND  COUN- 
TY COURTS. 

§  852.     Summary  of  statutes— Chief  justices  of  county  courts. 

§  853.  Idem— County   judges. 

§  854.  Idem — County   courts. 

§  855.  Idem — Associate  justices. 

§  856.  Idem — County   commissioners. 

§  857.     Act  of  December  20,  1836— Chief  and  associate  justices. 

§  858.     Act  of  June  12,  1837 — Associate  justices. 

§  859.     Act   of  January   19,   1839— Chief  justice  and  county  court — 

Note. 
§  860.  Note. 

§  861.     Act  of  January  26,  1839— Chief  justices. 
§  862.     Act  of  February  5,  1840— Chief  justice  and  county  courts. 
§  863.     Act  of  January  22,  1841— Associate  justices. 
§  864.     Act  of  February  3,  1841 — Chief  justices. 
§  865.     Act  of  February  5,  1841— Validates. 
§   866.  Chief  justices. 

§  867.     Act  of  January  3,  1842  — Associate  justices. 
§  868.     Act   of   April   29,   1846— Schedule   of   married  woman's  prop- 
erty. 
§  869.     Act  of  April  30,  1846— Chief  justices  omitted. 
§  870.  Note. 

§  871.     Act  of  May  2,  184&— Chief  justices. 
§  872.     Act  of  May  12,  1846— Chief  justices  omitted. 
?  873.  Note. 

§  874.     Act  of  May  13,  1846  — County  courts  and  county  commission- 
ers. .    . 

§  875.  Note. 

§   876.     Act  of  March   16,  1848 — County  court   established   and  chief 
justices  authorized  to  take  acknowledgments. 

§   877.  County  commissioners. 

§  878.  Note. 

§  879.     Act  of  December  29,  1849— County  commissioners. 

§  880.     Act  of  February  9,  1860— Validates. 

§  881.     Act  of  April  6,  1861— Judges  of  courts  of  record  authorized. 

§  882.     Act  of  January  14,  1862— Judges  of  courts  of  record  author- 
ized. 

§  883.     Constitution   of   1866— County   courts. 


351  OFFICEKS  OF  THE  COUNTY   COITRT.  §  852 

§  884.  Act  of  October  25,  1866 — County  courts. 

§  885.  Act  of  November  13,  1866— Judges  omitted. 

§  886.  Act  of  August  8,  1870— District  clerks  and  deputies. 

§  S87.  Act  of  August  13,  1870 — County  court  composed  of  five  jus- 
tices of  the  peace. 

§  888.  Act  of  August  13,  1870 — Validates. 

§  889.  Act  of  May  6,  1871 — Omits  county  judges. 

§  890.  Constitution  of  November  24,  1875 — County  courts. 

§  891.  Act  of  June  16,  1876— County  courts. 

§  892.  Act  of  July  28,   1876— Validates. 

§  893.  Act  of  August  18,  1876— Seal. 

§  894.  Revised  Statutes  of  1879  and  1895— Officers  authorized. 

§  852.  Summary  of  Statutes — Chief  Justices  of  the  County 
Court. — From  the  following  statutes  it  appears  (when 
taken  within  the  state)  that  from  December  20,  1836,  to 
March  17,  1841,  chief  justices  were  authorized  to  take 
any  and  all  acknowledgments  of  instruments  to  be  re- 
corded anywhere.  From  March  17,  1841,  to  July  13, 
1846,  they  were  authorized  to  take  single  acknowledg- 
ments of  instruments  to  be  recorded  within  their 
counties,  and  probably  of  instruments  to  be  recorded 
anywhere.  From  July  13,  1846,  to  August  7,  1848,  chief 
justices  were  not  authorized  to  take  acknowledgments 
unless  they  were  authorized  by  being  ex-officio  notaries 
public.  From  August  7,  1848,  to  April  6,  1861,  they 
were  probably  authorized  to  take  joint  and  single  ac- 
knowledgments. From  April  6,  1861,  to  November  13, 
1866,  as  judges  of  courts  of  record  they  were  authorized 
to  tiike  any  and  all  acknowledgments.  From  November 
13,  1866,  to  September  1,  1879,  they  were  not  authorized. 
(See  "County  Judges.") 

Married  Women. — From  February  3,  1841,  to  June 
22,  1846,  chief  justices  were  authorized  to  take  acknowl- 
edgments of  married  women.  From  June  22,  1846,  to 
August  7,  1848,  query,  Were  chief  justices  authorized 
as  ex-officio  notaries  public  to  take  acknowledgments 
of  married  women?  From  August  7,  1848,  to  April  6, 
1861,  they  were  probably  authorized  to  take  acknowledg- 
ments of  married  women.  From  April  6,  1861,  to  No- 
veml)er  13,  1866,  they  were  authorized  to  take  acknowl- 


§§  853-857      "WHO  MAY  TAKE  ACKNOWLEDGMENTS.  352 

edgments  of  married  women.     Thereafter  they  were  not. 
But  see  "County  Judges." 

§  853.  Idem — County  Judges. — After  December  31, 
1866,  the  county  court  was  presided  over  by  the  county 
judge,  but  they  were  not  authorized  to  take  acknowl- 
edgments until  September  1,  1879.  At  all  times  there- 
after, they  were. 

§  854.  Idem— County  Courts.— From  January  13,  1839, 
to  February  3,  1841,  county  courts  were  authorized  to 
take  aji3^  and  all  acknoAvledgments.  Thereafter  they 
were  not  authorized  to  take  married  women's  acknowl- 
edgments. From  January  19,  1839,  to  July  13,  1846, 
they  were  authorized  to  take  single  acknowledgments, 
but  not  thereafter. 

§  855.  Idem — Associate  Justices — ^From  June  12,  1837, 
to  Januaiy  19,  1839,  associate  justices  were  authorized 
to  act  in  case  of  inability  of  chief  justice.  From  Jan- 
uary 19,  1839,  to  July  13,  1846,  they  were  probably  au- 
thorized to  act  in  absence,  etc.,  of  chief  justices,  if  they 
(chief  justices)  would  have  been  authorized.  There- 
after, there  were  no  officers  designated  associate  jus- 
tices of  the  county  court. 

§  856.  Idem — County  Commissioners. — From  July  13, 
1846,  to  August  7,  1848,  county  commissioners  do  not 
seem  to  have  been  authorized  to  act  except  as  a  court. 
From  August  7,  1848,  to  April  6,  1861,  and  from  then 
until  November  13,  1866,  two  county  commissioners 
were  probably  authorized  to  act  for  chief  justices  in  tak- 
ing acknowledgments  in  certain  contingencies.  There- 
after they  were  not. 

§  857.  Act  of  December  20,  1836 — Chief  and  Associate  Jus- 
tices.— Chief  and  associate  justices  were  judicial  officers 
created  by  the  act  of  December  20,  1836,*  establishing 

1   1  L.  T.  1208,  1215;  H.  D.  230. 


353  OFFICEES  OF  THE   COUNTY  COUET.        §§  858,859 

the  county  court  of  each  county,  which  court  shall  con- 
sist of  one  chief  justice  elected  by  joint  ballot  of  both 
Houses,  and  two  associate  justices,  selected  by  majority 
of  the  justices  of  peace  of  each  county  from  among  their 
number.  By  section  34  of  said  act,  the  chief  justices  of 
the  several  county  courts  became  ex-officio  notaries  pub- 
lic for  their  counties^  and  the  seals  of  the  county  courts 
became  notarial  seals.^  A  certificate  by  a  chief  justice 
of  the  county  court  is  valid  though  he  does  not  sign 
as  notary,  but  as  chief  justice  of  the  county  court.*  It 
seems  that  associate  justices  were  authorized  by  this 
act  to  act  only  as  a  court  and  were  not  authorized  to 
take  acknowledgments  until  the  act  of  June  12,  1837, 
was  passed. 

§  858.  Act  of  June  12,  1837 — Associate  Justices. — The 
act  of  June  12,  1837,^  provides  that  in  case  chief  jus- 
tices are  interested  or  absent  or  unable  to  act,  either  of 
the  associate  justices  may  act  as  notaries  public.^ 

§  859.  Act  of  January  19,  1839— Chief  Justice  and  County 
Court.— The  act  of  January  19,  1839  (taking  effect  from 
passage),''  provided  that  it  shall  be  the  duty  of  the  clerks 
of  the  county  courts  to  record  all  deeds,  etc.,  affecting 
titles  to  land  situated  within  their  counties  which  shall 
be  presented  to  them  for  record;  provided  one  of  the 
subscribing  witnesses  shall  swear  to  the  signature  of 
the  signer,  or  he  himself  shall  acknowledge  the  same; 
which  proof  or  acknowledgment  shall  be  made  either 
before  some  county  court  or  chief  justice  of  the  same, 
or  before  the  clerk  in  whose  oflflce  such  instrument  is 
proposed  to  be  recorded;  the  certified  copy  of  which 
shall  be  made  upon  such  instrument  by  the  proper  of- 
ficer and  become  a  part  of  the  rece^rd ;  and  all  laws  con- 

2  Ante,  §§   597-602. 

3  See  ante,  §  503. 

4  Wilson   V.   Simpson,   68   Tex.   312,  4   8.  "N.  839;    ante,  §  586. 

5  1  L.  T.  1333;  H.  D.  261. 

6  Ante,  §  603. 

7  2  L.  T.  52;  P.  D.  4974;  H.  D.  2760. 

23 


§§860-862      WHO  MAY  TAKE  ACKNOW>,EDGMENTS.  354 

trary  to  or  conflicting!;  with  tliis  act  bo,  and  the  same  are 
hereby,  repealed  so  far  as  they  conflict  witli  or  are  con- 
trary to  tlie  same.^ 

§  860.  Note — It  is  doubtful  if  this  revokes  the  au- 
thority of  associate  justices  to  take  acknowledgments, 
they  being  probably  still  authorized  in  certain  contin- 
gencies. By  the  act  of  June  12,  1837,  they  were  au- 
thorized to  act  where  chief  justices  were  disqualified 
and  this  law  was  not  repealed  by  the  act  of  January  19, 
1839.^  In  certain  contingencies  they  would  be  in  effect 
ex-oflicio  chief  justices,  or  bear  the  same  relation  to 
them  that  deputies  do  to  their  principals.  It  is  held 
that  an  acknowledgment  before  a  primary  judge  was 
good  by  reason  of  his  being  ex-ofiicio  notary  public,  al- 
though the  statute  did  not  in  terms  authorize  primary 
judges  to  take  acknowledgments,  and  the  oiflcer  did  not 
sign  as  a  notary  public.*®  It  is  also  well  established 
that  a  deputy  may  take  acknowledgments  where  his 
principal  only  is  mentioned  in  the  law  authorizing  ac- 
knowledgments.** Where  the  acknowledgment  is  taken 
by  the  county  court,  it  must  be  done  in  open  court,  and 
this  must  be  shown  by  the  certificate.*^ 

§  861.  Act  of  January  26,  1839^Chief  Justices.— The  act 
of  January  26,  1839,*^  again  provides  that  chief  justices 
shall  exercise  powers  of  notaries  public.*"* 

§  862.  Act  of  February  5,  1840 — Chief  Justices  and  County 
Courts.— The  act  of  February  5,  1840,*^  again  authorized 

8  Ante,   §§   608,  609. 

9  Ante,   §§   622-626. 

10  Wilson  V.  Simpson,  68  Tex.  312,  4  S.  W.  839;  Bntler  v.  Duna- 
gan,  19  Tex.  559;  Harvey  v.  Hill,  7  Tex.  592. 

11  Ante,  §§  587-592;  but  see  McCelvey  v.  Cryer  (Tex.  Civ.  App.), 
28  S.  W.  691;  Holliday  v.  Cromwell,  26  Tex.  194. 

12  State  V.  Pureell,  16  Tex.  307;  Wright  v.  Leath,  24  Tex.  33. 

13  2  L.  T.  91;  H.  D.  1839. 

14  See  ante,  §   610. 

15  2  L.  T.  328. 


355  OFFICEES   OF   THE   COUNTY   COUET.         §§863-866 

chief  justices  of  a  county  court  to  take  acknowledg- 
ments and  proof.^*^  Also  authorized  county  courts  to 
take  same.^''     Repealed  when?** 

§  863.  Act  of  January  22,  1841 — Associate  Justices. — The 
act  of  January  22,  1841/^  again  provided  that  associate 
justices  may  act  if  the  chief  justice  is  interested,  absent 
or  unable  to  act^® 

§  864.     Act  of  February  3,  1841— Chief  Justices The  act 

of  February  3,  1841^*  (taking  effect  from  passage),  au- 
thorized chief  justices  of  the  county  court  to  take  the 
acknowledgments  of  married  women.^^  Associate  jus- 
tices were  probably  also  authorized  to  act  where  chief 
justices  are  disqualified.^^ 

§  865.  Act  of  February  5,  1841— Validates. — The  act  of 
February  5,  1841'^  (taking  effect  March  17,  1841),  vali- 
dated the  registration  of  certain  deeds.^*^ 

§  866.  Chief  Justices — Article  2777,  Hartley's  Di- 
gest,^^  of  the  same  act,  provides  that  deeds,  etc.,  here- 
after made  and  recorded  shall  be  duly  registered  in  the 
office  of  the  proper  court  upon  the  acknowledgment 
of  the  parties  signing  same  before  the  register,  or  clerk 
of  the  county  court  of  that  county,  or  chief  justice  of 
the  county,  etc.,  or  proof  by  a  subscribing  witness  be- 
fore such  officer  and  certified  by  him  for  record;  and 
that  if  it  be  so  acknowledged  and  certified  there  need 
be  no  subscribing  witnesses.     The  court  seems,  in  Willis 

16  Ante,  §   613. 

17  Ante,  §§  611,  612. 

18  Ante,  §  615. 

19  2  L.  T.  532;  H.  D.  272. 

20  Ante,  §  616. 

21  2  L.  T.  608;  H.  D.  173. 

22  Ante,  §  617;  Willis  v.  Lewis,  28  Tex.  185. 

23  Ante,  §  855. 

24  2  L.  T.  633;  H.  D.  2776. 

25  Ante,  §§  619,  627-631;  post,  §  1018. 

26  2  L.  T.  633. 


§§  867-S70       WHO  MAY  TAKE  ACKNOWLEDGMENTS.  3o6 

V.  Lewis,''  to  consider  that  chief  justices  of  the  county 
courts  were  authorized  by  virtue  of  their  offices  to  take 
aclcnowledgments  in  other  counties  than  their  own,  in 
1845.  But  that  question  is  not  directly  decided.  As- 
sociate justices  were  probably  authorized  to  act  in  lieu 
of  chief  justices,  where  chief  justices  were  disqualified 
by  reason  of  interest,  etc.^* 

§  867.  Act  of  January  3,  1842 — Associate  Justices. — The 
act  of  January  3, 1842,  made  it  the  duty  of  associate  jus- 
tices to  discharge  the  duties  of  the  office  of  chief  justice 
should  a  vacancy  occur.^^ 

§  868.  Act  of  April  29,  18463<*— Schedule  of  Married 
Woman's  Property — This  act  provides  that  any  author- 
ized officer  may  take  acknow^ledgments  of  married 
women  to  a  schedule  of  her  separate  property.^^ 

§  869.  Act  of  April  30,  1846— Chief  Justices  Omitted.— 
The  act  of  April  30,  1846^^  (taking  effect  June  22,  1846), 
providing  the  manner  of  the  disposition  of  the  wife's 
property,  homestead  and  exempt  property,  in  enumerat- 
ing the  officers  before  whom  the  acknowledgment  could 
be  made,  to  wit,  judges  of  the  supreme  or  district  court 
or  notaries  public,  omitted  chief  justices  of  the  county 
court;  and  Hartley's  Digest,  article  177  (same  act),  re- 
peals all  former  laws  and  parts  of  laws  concerning  the 
mode  of  conveyance  of  property  in  which  the  wife  has 
an  interest.  ^^ 

§  870.  Note. — .This  act  revokes  the  authority  of  chief 
justices  as  granted  by  the  act  of  February  5,  1841,^"^  but 

27  28   Tex.   185. 

28  Ante,  §  855.  As  to  effect  of  this  act  on  previous  acts,  see 
ante,  §§  621-626. 

29  Ante,  §  632. 

30  2  L.  T.  1459. 

31  Ante,  §  6.35. 

32  2  L.  T.  1462;  H.  D.  174. 

33  Ante,  §§  637-639. 

34  Post,  §  873;  ante,  §  641. 


357  OFFICERS  OF  THE   COUNTY   COURT.       §§  871-873 

as  it  authorized  aoknowlecloinents  by  notaries,  there  is 
some  question  as  to  whether  or  not  chief  and  associate 
justices  of  the  county  court  would  not  be  authorized  as 
ex-offieio  notaries  public.  The  acts  of  December  20, 
1836,  and  January  26,  1839,  made  chief  justices  of  the 
county  court  ex-officio  notaries  public.  These  acts,  it 
seems  apparent,  were  not  repealed  by  the  acts  of  Feb- 
ruary 3,  1811,  and  April  30,  1816,^^  and  might  still  au- 
thorize the  taking-  of  acknowledgments. 

§  871.  Act  of  May  2,  1846— Chief  Justices. — The  act  of 
May  2,  1846^^  (taking  effect  from  passage),  provides  that 
chief  justices  who  were  elected  before  the  first  Monday 
of  February,  1816,  shall  perform  the  duties  of  the  office 
until  their  successors  are  elected  and  qualified  and  their 
acts  shall  be  valid;  but  it  does  not  authorize  them  to 
take  acknowledgments.^'' 

§  872.  Act  of  May  12,  1846— Chief  Justices  Omitted.— 
The  act  of  May  12,  1816  (taking  effect  July  13,  1816),^^ 
provided  that  proof  or  acknowledgment  of  every  instru- 
ment of  writing  for  record  shall  be  taken  by  some  one 
of  the  following  officers  when  acknowledged  or  proved 
in  the  state,  to  wit:  A  notary  public  or  clerk  of  the 
county  court  of  any  county  in  the  state.  It  omits  chief 
justices,  and  repeals  all  conflicting  laws  and  parts  of 
laws.-*^-' 

§  873.  Note. — This  evidently  revokes  the  authority  of 
chief  justices  to  take  acknowledgments  and  proof  of  in- 
struments for  record,  unless  they  would  be  authorized 
by  virtue  of  being  ex-officio  notaries  public.'*^  Where 
a  statute  limits  a  thing  to  be  taken  in  a  particular  form 
it  includes  in  itself  a  negative,  viz.,  that  it  shall  not  be 

.15   Ante,  §§  622-626,  662-665. 
36   2  L.  T.  1471;  H.  D.  284. 
.•i7   Ante,  §  642. 
a  8  2  L.  T.  1544;  II.  D.  2794. 

39  Ante,   §§   644-653. 

40  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691. 


§  874  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  358 

done  otherwise,  and  if  a  subsequent  statute  be  not  re- 
pugnant in  all  its  provisions  to  a  prior  one,  yet  if  the 
latter  statute  was  clearly  intended  to  prescribe  the  only 
rule  which  shall  govern,  it  repeals  the  prior  one.'*^ 
But  repeals  by  implication  are  not  favored.^^  It  is  held 
in  Herndon  v.  Reed,"*^  that  there  must  be  a  positive 
repugnance  between  the  provisions  of  the  new  law  and 
those  of  the  old;  and  even  then  the  old  law  is  repealed 
by  implication  only  pro  tanto  to  the  extent  of  the  re- 
pugnancy and  that  a  statute  in  affirmative  terms  with- 
out intimation  of  an  intent  to  repeal  a  prior  law  does 
not  repeal  it  unless  the  new  and  the  old  are  irreconcil- 
ably in  conflict.  It  emphasizes  the  distinction  between 
the  clauses  "shall  be  taken  by  certain  officers,"  and  "may 
be  taken  by  certain  officers,"  and  holds  that  the  latter 
clause  does  not  necessarily  limit  official  acts  to  the  of- 
ficers authorized  by  said  clause.  As  the  act  of  May  12, 
1846,  provides  that  acknowledgment  shall  be  taken  by 
certain  officers,  it  clearly  limits  such  official  acts  to  those 
officers.**  Chief  and  associate  justices  of  the  county 
court  may  have  been  authorized  to  take  acknowledg- 
ments as  ex-officio  notaries  public  at  this  time  (July 
1846),  as  the  acts  of  December  20,  1836,  and  January  26, 
1839,  were  not  then  repealed,  but  that  question  seems 
not  to  have  been  decided.'*^ 

§  874.  Act  of  May  13,  1846— County  Courts  and  County 
Commissioners. — The  act  of  May  13,  1846  (taking  effect 
July  13,  1846),"***  provides  that  there  shall  be  in  each 
county  in  this  state  an  inferior  court  to  be  styled  the 
"County  court  of county,"  which  shall  be  com- 
posed of  one  chief  justice  and  four  commissioners  who 

41  Bryan  v.  Simdberg,  5  Tex.  423;   Eogers  v.  Watrous,  8  Tex.  65, 
58  Am.  Dec.  100. 

42  Thouvenin  v.  Eodrigues,  24  Tex.  468. 

43  82  Tex.  651,  18  S.  W.  665. 

44  Ante,  §§  644-653. 

45  See  ante,   §§  662-665. 

46  2  L.  T.  1640;  H.  D.  255,  291. 


359  OFFICEES    OF    THE    COUNTY    C0I7ET.       §§  875-877 

shall  be  styled  county  commissioners.*''  And  whenever 
the  office  of  chief  justice  is  vacant,  or  whenever  the 
chief  justice  is  absent  from  the  county,  or  incapable 
from  any  cause  to  hold  court,  any  three  of  the  county 
commissioners  shall  form  a  quorum  of  said  court.*® 

§  875.  Note. — It  does  not  provide  that  any  of  the 
above  officers  may  take  acknowledgments  or  be  ex-of- 
flcio  notaries  public,  but  there  is  some  question  as  to 
whether  or  not  it  repeals  the  acts  of  December  20,  1836, 
and  January  26,  1839,  in  so  far  as  they  make  chief  jus- 
tices ex-officio  notaries  public.*®  Neither  does  it  au- 
thorize said  commissioners  to  act  except  as  a  court®** 
It  is  repealed  by  the  act  of  March  16,  1848. 

§  876.  Act  of  March  16,  1848— County  Court  Established 
and  Chief  Justices  Authorized  to  Take  Acknowledgments. — 
The  act  of  March  16,  1848  (taking  effect  August  7, 
1848),®*  provides  that  there  shall  be  in  each  county  of 
this  state  an  inferior  court  to  be  styled  the  "County 
court,"  which  shall  be  composed  of  one  chief  justice. 
It  also  authorized  chief  justices  to  take  acknowledg- 
ments and  proof  of  all  instruments,  and  gives  them  the 
power  to  examine  and  take  the  acknowledgments  of 
married  women  of  deeds  to  their  separate  property,  and 
all  acts  so  taken  by  any  chief  justice  of  a  county  court 
in  this  state  shall  have  the  same  force  and  effect  as  if 
taken  by  a  notary  public.®^ 

§  877.  County  Commissioners. — Section  23  of  said  act 
provided  that  in  case  of  vacancy  in  the  office  of  chief 
justice,  that  any  two  county  commissioners  shall  have 
power  to  hold  all  such  courts  as  the  chief  justice  can 
hold,  and  to  do  and  perform  all  such  official  acts  as  he 

47  Ante,   §   657. 

48  Ante,  §§   657-660. 

49  See  ante,  §§  662-666. 

50  Ante,  §  600. 

51  3  L.  T.  119;  H.  D.  333,  2801. 

52  Ante,  §§  678,  680,  878. 


§§  878,  879     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  360 

can  do  and  perform.     This  seems  to  authorize  acknowl- 
edgment of  deeds  before  two  county  commissioners. 

§  878.  Note — In  the  case  of  Belcher  v.  Weaver,^^ 
while  the  question  as  to  authority  of  chief  justices  to 
take  acknowledgments  is  not  raised,  the  court  holds 
the  acknowledgment  taken  by  one  of  them  is  valid. 
There  may,  however,  be  some  question  as  to  the  con- 
stitutionality of  the  provision  of  this  act  authorizing 
acknowledgments.^*  This  act  repeals  the  acts  of  May 
13,  1846,  December  20,  1836,  and  January  26,  1839,  or- 
ganizing county  courts,  but  not  the  acts  of  April  30, 
1846,  and  May  12,  1846,  pertaining  to  conveyances,  not 
being  repugnant  to  them,  but  only  adding  another  of- 
ficer before  whom  acknowledgments  may  be  made.*^^ 
Chief  justices  of  the  county  courts  were  probably  still 
ex-officio  notaries  public  as  well  as  having  the  direct  au- 
thority to  take  acknowledgments.^*^ 

§  879.  Act  of  December  29,  1849 — County  Commissioners. 
The  act  of  December  29,  1849  (taking  eifect  from  pas- 
sage),^'^  provided  that  whenever  the  ofiflce  of  chief  jus- 
tice in  any  county  in  this  state  is  vacant,  or  whenever 
the  chief  justice  of  any  county  court  in  this  state  shall 
be  absent  from  the  state  or  unable  to  discharge  the  du- 
ties of  his  office  by  reason  of  interest  or  from  any  cause, 
then  any  two  of  the  county  commissioners  of  such 
county  shall  have  power  to  do  and  perform  all  the  du- 
ties of  chief  justices  of  the  county  court.  As  chief  jus- 
tices are  ex-officio  notaries  public,  this  act  would,  it 
seems,  authorize  the  acknowledgment  of  deeds  by  two 
county    commissioners.^^     Temporary     disqualification 

53  4B  Tex.  295,  26  Am.  Eep.  267. 

54  See  ante,   §§   675-680. 

55  Herndon  v.  Eeed,  82  Tex.  651,  18  S.  W.  665;  Green  v.  Eugley, 
23  Tex.  548;  Fayette  Co.  v.  Faires,  44  Tex.  575;  ante,  §§  622-625 

56  See  ante,  §§  675-680. 

57  3  L.  T.  459. 

58  Ante,   §   682. 


361  OFFICEES  OF  THE  COUNTY  COURT.       §§  880-882 

(by  indisposition)  of  chief  justice  to  act  did  not  give 
jurisdiction  to  commissioners.^^ 

§  880.  Act  of  February  9,  1860— Validates—  The  act  of 
February  9,  1860^^  (taking  effect  from  passage),  vali- 
dates certain  acknoviledgments  by  chief  and  associate 
justices  of  the  county  court. *^^ 

§  881.  Act  of  April  6,  1861— Judges  of  Courts  of  Record 
Authorized.— The  act  of  April  6,  1861  (taking  effect  from 
passage),*^^  provides  that  proof  of  every  instrument  of 
vi'riting  for  record  when  within  this  state  shall  be  be- 
fore some  notarj^  public,  clerk  of  the  county  court  or 
judge  of  the  court  of  record,  attested  by  his  official  seal ; 
and  repeals  all  laws  in  conflict  therewith,^^  County 
as  well  as  district  courts  were  courts  of  record.^'*  As 
county  commissioners  were  authorized  under  the  former 
laws  to  perform  the  duties  in  certain  contingencies  of 
the  chief  justices  (or  judges  of  courts  of  record),  query, 
Was  their  authority  to  act  as  chief  justices  in  taking 
acknowledgments  revoked  by  these  acts?^^ 

§  882.  Act  of  January  14,  1862— Judges  of  Courts  of  Rec- 
ord Authorized. — The  act  of  January  11,  1862^^  (taking 
effect  from  passage),  also  authorizes  judges  of  courts  of 
record  to  take  acknowledgments  within  the  state  and 
attests  same  with  their  oflflcial  seals;  and  it  repeals  con- 
flicting laws.^' 

59  Trueheart  v.  Addicks,  2  Tex.  221. 

60  4  L.  T.  1437. 

61  See  ante,  §  684. 

62  5  L.  T.  373. 

63  Ante,  §  686. 

64  Ex  parte  Burkhardt,  16  Tex.  470;  and  sec  Guilford  v.  Love, 
49  Tex.  735;  Alexander  v.  Maverick,  IS  Tex.  179,  67  Am.  Dec.  693; 
Martin  v.  Burns,  80  Tex.  678,  16  S.  W.  1072;  and  ante,  §  533. 

«5  See  ante,  §  856. 

66  5  L.   T.  50. 

67  Ante,  §§  533,  688,  881. 


§§  883-885      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  362 

§  883.  Constitution  of  1866 — County  Courts. — The  con- 
stitution of  1866  ^^  provides  for  a  court  in  each  county 
to  be  styled  the  "County  court,"  the  judge  of  which  shall 
be  elected  by  the  people. ^^ 

§  884.  Act  of  October  25,  1866— County  Courts. — The  act 
of  October  25  (December  31),  1866,'^<*  provided  for 
county  courts  composed  of  the  county  judge.  It  does 
not  authorize  county  judges  to  take  acknowledgments, 
nor  make  them  ex-officio  notaries  public.''*  It  compre- 
hends the  whole  subject  matter  of  county  courts,  and 
consequently  repeals  by  implication  previous  laws  con- 
cerning the  same  subject  matter,''^  but  probably  not 
the  authority  granted  judges  of  courts  of  records  by 
the  acts  of  April  6,  1861,  and  January  14,  1862.  While 
the  above  law  was  passed  under  and  in  compliance  with 
the  constitution  of  1866,  which  was  not  approved  by 
the  Federal  Congress,  our  courts  hold  it  to  be  a  valid 
law.''®    County  courts  were  courts  of  record.''* 

§  885.  Act  of  November  13,  1866— Judges  Omitted — The 
act  of  November  13,  1866^^  (taking  effect  from  passage), 
provides  that  acknowledgments  within  the  state  shall 
be  taken  by  a  notary  public  or  clerk  of  the  county 
court.''®  It  omits  judges  of  the  courts  of  record.  It 
seems  that  this  would  revoke  the  authority  of  chief  jus- 
tices of  the  county  court  and  county  commissioners  to 
take  acknowledgments.''''     It  is  doubtful  if  they  were 

68  5  L,  T.  868. 

69  Ante,   §   689. 

70  5  L,  T.  961. 

71  Ante,  §  690. 

72  Ante,   §§   622-625. 

73  Wallerath  v.  Knapp,  31  Tex.  359.  See  Wallace  v.  State,  33  Tex. 
445;  Waters  v.  Waters,  33  Tex.  50. 

74  Ante,  §  881. 

75  5  L.  T.  1128. 

76  Ante,   §   691. 

77  See  ante,  §§  622-625;  Herndon  v.  Eeed,  82  Tex.  657,  18  S.  W. 
663;  McCelvey  v.  Cryef  (Tex.  Civ.  App.),  28  S.  W.  691;  Bryan  v. 
Sundberg,  5  Tex.  423;  Rogers  v.  Watrous,  8  Tex.  65,  58  Am.  Dee.  100; 


363  OFFICEES  OF  THE  COUNTY  COUET.       §§  886-8S8 

ex-officio  notaries  public^*  County  judges  were  not 
again  authorized  to  take  acknowledgments  until  the 
adoption  of  the  Revised  Statutes  of  September  1,  1879, 
but  acknowledgments  taken  before  August  13, 1870,  were 
validated  by  the  act  of  that  date  in  so  far  as  such  vali- 
dating statute  would  not  affect  vested  rights/^  It 
should  be  noticed  that  this  validating  statute  does  not 
cover  the  period  from  August  13,  1870,  to  September  1, 
1879,  when  county  judges  were  again  authorized  to 
take  acknowledgments.  County  commissioners  were 
not  afterward  authorized  to  take  acknowledgments. 

§  886.  Act  of  August  8,  1870 — District  Clerks  and  Dep- 
uties.— The  act  of  August  8,  1870*^  (taking  effect  from 
passage),  authorized  district  clerks,  their  deputies  and 
notaries  public  to  take  acknowledgments,  omitting 
judges  of  the  courts  of  record  and  repeals  laws  in  con- 
flict therewith.^* 

§  887.  Act  of  August  13,  1870— County  Courts  Composed 
of  Five  Justices  of  the  Peace. — The  act  of  August  13,  1870, 
provided  that  county  courts  shall  be  composed  of  five 
justices  of  the  peace. *^ 

§  888.  Act  of  August  13,  1870— Validates. — The  act  of 
August  13,  1870^^  (taking  effect  from  passage),  provided 
that  deeds,  etc.,  that  shall  have  been  heretofore  acknowl- 
edged before  any  county  judge  of  any  county  in  this 
state,  or  proven  before  any  such  officer  by  one  or  more 
of  the  subscribing  witnesses  and  certified  by  the  sub- 
scribing officer,  shall  be  held  to  be  duly  acknowledged 
or  proven  with  the  full  effects  and  consequences  of  ex- 

Thouvenin  v.  Kodrigues,  24  Tex.  468;  St.  Louis  &  S.  W.  Ey.  Co.  v. 
Kay,  85  Tex.  558,  22  S.  W.  665. 

78  Ante,  §  679. 

79  Post,  §  888. 

80  6  L.  T.  223. 

81  See  Herndon  v.  Eeed,  82  Tex.  657. 

82  Ante,  §  699. 

83  6  L.  T.  251. 


§§  889-891      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  364 

istiiig  laws,  and  that  every  such  instrument  so  acknowl- 
edged or  proven  before  siicli  county  judge,  and  which 
shall  have  been  heretofore  registered,  shall  be  held  to 
have  been  dulv  registered.^* 


^  889.  Act  of  May  6,  1871— Omits  County  Judges. — The 
act  of  INIay  6,  1871^^  ( taking  effect  from  passage,  amend- 
ing the  eleventh  section  of  the  act  of  May  12,  1846), 
provides  that  proof  or  acknowledgment  of  every  in- 
strument of  writing  for  record  may  be  taken  before 
some  one  of  the  following  ofiflcers :  First,  when  acknowl- 
edged or  proven  within  this  state,  before  some  notary, 
public,  district  clerk  or  judge  of  the  supreme  or  district 
court  in  this  state,  etc.,  county  judges  being  omitted. 
( This  act  is  changed  by  the  codiflers  of  Revised  Statutes 
of  1879,  which  authorizes  county  judges  to  take  ac- 
knowledgments.)*^ 

§  890.  Constitution  of  November  24,  1875 — County  Courts. 
The  constitution  of  November  24,  1875,®''  provided  for  a 
county  court  in  each  county  in  the  state  which  shall  be 
a  court  of  record,  and  there  shall  be  elected  by  the 
qualified  voters  a  county  judge,  who  shall  hold  his 
office  for  two  years,  and  until  his  successor  qualifies. ** 

§  891.  Act  of  June  16,  1876— County  Courts. — The  act 
of  June  16,  1876*^  (taking  effect  from  passage,  now  in 
force),  provides  that  there  shall  be  established  in  each 
county  a  court  of  record  styled  the  "County  court"  and 
that  one  county  judge  shall  be  elected  in  each  county 
for  two  years  and  hold  his  office  until  his  successor 
qualifies,  but  it  does  not  authorize  him  to  take  acknowl- 
edgments. It  also  validates  certain  acts  of  county 
judges,  but  not,  it  seems,  acknowledgments  taken  by 

84  Ante,  §  701. 

85  6  L.  T.  976;  P.  D.  7418. 

86  Ante,  §  703. 

87  Article  5,  §   15;   8  L.  T.  800. 

88  Ante,  §  708. 

89  8  L.   T.    853. 


365  OFFICERS    OF    THE    COUNTY    COURT.        §§892-894 

them,  as  those  acts  only  were  validated  which  would 
have  been  authorized  by  the  provisions  of  this  act,  and 
acknowledgments  were  not  so  authorized.®^ 

§  892.  Act  of  July  28,  1876— Validates.— The  validat- 
ing act  of  July  28,  1876®^  (taking  effect  November  19, 
1876),  providing  that  where  any  certificate  of  acknowl- 
edgment or  proof  of  a  conveyance  by  a  married  woman 
heretofore  taken  by  an  authorized  officer  is  invalid  on 
account  of  some  word,  it  shall,  nevertheless,  be  held  to 
be  valid,  provided  the  certificate  shall  show  that  she  was 
examined  by  the  officer  privately,  that  the  instrument 
was  explained  to  her,  and  that  she  declared  that  she  had 
willingly  signed  the  same  and  that  she  did  not  wish 
to  retract  it.®^ 

§  893.  Act  of  August  18,  1876— Seal.— The  act  of  Au- 
gust 18,  1876®^  (taking  effect  from  passage),  provides 
for  a  seal  of  the  county  court.®'* 

§  894.  Revised  Statutes  of  1879  and  1895— Officers  Au- 
thorized.— The  act  now  in  force,  Eevised  Statutes  of  1879 
and  1895,  article  4613  (taking  effect  September  1,  1879), 
provides  that  the  acknowledgment  or  proof  of  an  in- 
strument of  writing  for  record,  may  be  made  within 
this'  state  before  either,  1.  A  clerk  of  the  district  court ; 
2.  A  judge  or  clerk  of  the  county  court;  3.  A  notary 
public.  While  the  above  article  (4613)  purports  to  be 
the  act  of  May  6,  1871,  it  differs  from  it  in  that  the  above 
article  (4613,  Revised  Statutes  of  1895)  includes  county 
judges,  and  omits  judges  of  the  supreme  and  district 
courts. 

00  Ante,   §   712. 

91  8  L.  T.  897. 

92  See  post,  §  1049. 

93  8  L.  T.  1008. 

94  Ante,  §  523. 


§  895  WHO  MAY  TAKE  ACKNOWLEDaMENTS.  366 


CHAPTER  XXIII. 

WHO   MAY   TAKE   ACKNOWLEDGMENTS— DISTEICT   JUDGES. 

§  895.     Summary   of   statutes. 

§  896.  Act  of  February  5,  1840— District  judges  authorized  to  take 
acknowledgments. 

§  897.  Act  of  February  3,  1841 — District  judges  authorized  to  take 
acknowledgments  of  married  women. 

§  898.  Act  of  February  5,  1841— District  judges  omitted,  but  au- 
thorized as  associate  judges. 

§  899.  Act  of  April  30,  1846— District  judges  authorized  to  take 
acknowledgments  of  married  women. 

§  900.  Note. 

§  901.     Act  of  May  11,  1846— Seals. 

§  902.     Act  of  May  12,  1846— District  judges  omitted. 

§  903.  Authority   of   district   judges  to  take  single  acknowledg- 

ments revoked. 

§  904:.     Idem. 

§  90^.  Authority  of  district  judges  to  take  acknowledgments  of 

married  women   not  revoked. 

§  906.  Act  of  December  18,  1849— County  clerks  authorized  to  take 
acknowledgments. 

§  907.     Act  of  April  6,  1861 — Judges  of  courts  of  record  authorized. 

§  90^.  Act  of  January  14,  1862— Judges  of  courts  of  record  au- 
thorized, 

§  909.  Act  of  November  13,  1866— Authority  of  judges  of  court  of 
record  revoked. 

§   9r0.  Idem. 

§  911.     Act  of  August  8,  1870— District  judges    omitted. 

§  912.  Act  of  May  6,  1871 — ^District  judges  authorized  to  take  ac- 
knowledgments. 

§  918.     Act  of  July  28,  1876— Validates. 

§  914.  Eevised  Statutes  of  1879— Authority  of  district  judges  re- 
voked. 

§  915.     Revised  Statutes  of  1879  and  1895— Idem. 

§  895.  Summary. — From  the  following  statutes  it 
seems  that  from  March  16,  1840,  to  July  13,  1846,  dis- 
trict judges  were  authorized  to  take  acknowledgments 
of  all  instruments  for  record.  From  July  13,  1846,  to 
April  6,  1861,  they  were  authorized  to  take  acknowl- 
edgments of  husband  and  wife  of  conveyances  of  the 


367  DISTEICT  JUDGES.  §§  896,  897 

homestead  and  separate  property  of  the  wife,  but  not 
single  acknowledgments.  From  April  6,  1861,  to  No- 
vember 13,  1866,  the  district  judges  were  authorized  to 
take  both  joint  and  single  acknowledgments.  From 
November  13,  1866,  to  May  6,  1871,  they  were  probably 
not  authorized  to  take  acknowledgments.  From  May 
6,  1871,  to  September  1,  1879,  they  were  again  author- 
ized to  take  both  joint  and  single  acknowledgments,  but 
after  the  Eevised  Statutes  of  September  1,  1879,  dis- 
trict judges  were  not  again  authorized  to  take  acknowl- 
edgments. 

§  896.  Act  of  February  5,  1840— District  Judges  Author- 
ized to  Take  Acknowledgments. — The  first  act  authorizing 
district  judges  to  take  acknowledgments  was  that  of 
February  5,  1840  (taking  effect  March  16,  1810).^  It 
authorized  the  record  of  instruments  upon  the  certifi- 
cate of  some  district  judge,  chief  justice  or  notary  pub- 
lic of  the  county  with  the  seal  of  his  office  thereunto 
annexed  that  such  acknowledgment  was  made  or  exe- 
cution proven.^  This  act  was  no  doubt  repealed  by 
the  act  of  May  12,  1846,^  but  not  by  the  act  of  Febru- 
ary 5,  1841.^  District  judges  were  also  the  associate 
judges  of  the  supreme  court.® 

§  897.  Act  of  February  3,  1841— District  Judges  Author- 
ized to  Take  Acknowledgments  of  Married  Women.— The  act 
of  February  3,  1841  (taking  effect  from  passage),^  au- 
thorized judges  of  the  district  court  and  chief  justices 
of  the  county  court  to  take  acknowledgments  of  hus- 
band and  wife  after  her  separate  examination,  of  con- 
veyances of  her  separate  property. 

1  2  L.  T.  328. 

2  Ante,  §   613. 

3  Post,  §  903. 

4  Ante,  §§  622-62.5,  627-631. 

5  Ante,   §   596. 

6  2  L.  T.  608. 

7  Ante,  §  617. 


7 


§§  S98-900      WHO  MAY  TAKE  ACKNOWLEDGMF^TS.  368 

§  898.  Act  of  February  5,  1841 — District  Judges  Omitted, 
but  Authorized  as  Associate  Judges. — The  act  of  February 
5,  184:1,"^  provided  tliat  every  o;rant,  deed  or  other  in- 
strument for  the  conveyance  of  real  estate  or  personal 
property,  or  both,  or  for  the  settlement  thereof,  in  mar- 
riage, etc.,  as  well  as  any  and  every  other  deed  or  in- 
strument required  or  permitted  by  law  to  be  recorded, 
filial!  he  duly  ref/istered  upon  acknowledgment  or  proi^f 
before  any  chief  or  associate  justice  of  supreme  court, 
chief  justice  or  clerk  of  county  court  or  notary  public , 
omittino-  district  judg-es.  It  seems,  however,  that  this 
does  not  repeal  previous  laws,  nor  revoke  the  authority 
of  district  judges  to  take  acknowledgments.^  They 
were  also  still  authorized  as  associate  judges  of  the 
supreme  court  by  this  act-*^^ 

§  899.  Act  of  April  30,  1846— District  Judges  Author- 
ized to  Take  Acknowledgments  of  Married  Women. — The  act 
of  April  30,  1846  (taking  effect  June  22,  1846),*^  pro- 
vided that  judges  of  the  supreme  or  district  court  may 
take  the  acknowledgment  of  husband  and  wife,  after 
the  private  examination  of  the  wife,  to  deeds  of  her 
separate  property,  the  homestead  and  other  exempt 
property. 

§  900.  Note.— It  seems  that  the  act  of  May  12,  1846, 
being  passed  at  the  same  legislature  as  this  act  does 
not  repeal  it  nor  revoke  the  authority  of  district  judges 
to  take  acknowledgment  of  husband  and  wife  for  con- 
veyances of  her  separate  property  ;^^  the  court  saying 
in  the  case  referred  to,  "that  the  same  legislature  is  sup- 
posed to  be  actuated  in  all  that  it  does  by  the  same 
mind,  spirit  and  intention,  and  to  have  at  all  times  the 
same  governing  policy.     The  artificial  being  is  supposed 

8  2  L.  T.  633. 

9  Ante,   §§   619-631. 

10  Ante,  §  596. 

11  2  L.  T.  1462. 

12  Galveston  S.  &  N.  G.  E.  W.  Co.  v.  Gross,  47  Tex.  435. 


369  DISTEICT    JUDGES.  §§  901-903 

to  be  of  but  one  mind,  and  that  a  rational  and  intelli- 
gent one,  and  all  acts  in  pari  materia  are  to  be  taken 
together  as  if  they  were  but  one  law." 

In  Monroe  v.  Arledge,-^^  it  is  held  that  the  act  of  May 
8,  1846,  authorizing  commissioners  of  deeds  to  authen- 
ticate instruments  of  writing  for  record  being  passed 
at  the  same  legislature  as  the  act  of  May  12,  1846,  was 
not  repealed  by  it,  although  by  its  terms  the  latter  act 
seemed  to  limit  the  authentication  of  instruments  to 
notaries  and  county  clerks ;  the  court  saying  "that  both 
acts  were  passed  at  the  same  session,  and  also  that  one 
of  the  acts  was  special  and  the  other  general.  Under 
these  circumstances,  it  required  very  plain  inconsist- 
ency or  contradiction  between  the  two  to  authorize  the 
opinion  that  the  latter  act  repealed  the  former.  Such, 
we  think,  does  not  exist  in  this  case."  It  seems  that 
under  this  act  district  judges  were  authorized  to  take 
acknowledgments  of  married  women  until  April  6,  1861. 

§  901.  Act  of  May  11,  1846— Seals.— The  act  of  May 
11,  1846,**  provided  for  a  seal  of  district  courts.*^ 

§  902.  Act  of  May  12,  1846— District  Judges  Omitted.— 
The  act  of  May  12,  1846  (taking  effect  July  13,  1846),*« 
provides  that  proof  or  acknowledgment  of  every  instru- 
ment of  writing  for  record  shall  be  taken  by  some  one 
of  the  following  officers:  First,  when  acknowledged  or 
proven  in  the  state,  before  some  notary  public  or  clerk 
of  the  county  court  of  any  county  of  the  state,  etc.*'' 

§  903.  Authority  of  District  Judges  to  Take  Single  Ac- 
knowledgments Revoked. — This  act  omits  district  judges, 
and  thus,  it  seems,  revokes  their  authority  to  take  ac- 
knowledgments of  deeds  of  all  property  except  the  sep- 

13  23  Tex.  481. 

14  2  L.  T.  1508. 

15  See  ante,  §  512. 

16  2  L.  T.  1544. 

17  Ante,  §  644. 

24 


§  904  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  370 

arate  property  of  the  wife,  the  homestead  and  other  ex- 
empt property,*®  In  McCelvey  v.  Cryer/^  it  is  held 
that  the  art  of  January  19,  1839,  which  provided  that 
it  shall  be  the  duty  of  clerks  to  record  instruments  pre- 
sented to  them  for  record  provided  the  grantor  shall 
acknowledge  the  same,  which  proof  or  acknowledgment 
shall  be  made  either  before  some  county  court  or  chief 
justice  thereof,  or  before  the  clerk  in  whose  office  the 
record  is  proposed  to  be  made,  and  repealed  all  laws 
contrary  thereto,  revoked  the  authority  of  notaries  to 
take  acknowledgments  by  omitting  them  from  its  pro- 
visions. 

This  act  of  May  12,  1846,  provides  that  every  acknowl- 
edgment "shall"  be  taken  by  a  notary  public  or  clerk  of 
the  county  court,  and  it  is  clear  from  Justice  Gaines' 
opinion  that  the  use  of  the  word  "shall"  in  such  pro- 
vision limits  the  act  to  those  two  officers.  In  discuss- 
ing whether  or  not  the  act  of  August  8,  1870,  authoriz- 
ing district  clerks  and  their  deputies  to  take  acknowl- 
edgments, was  repealed  by  the  act  of  May  6,  1871,  which 
omitted  deputies,  the  court  says  that  "the  language  of 
the  latter  act  is  not  that  the  proof  or  acknowledgment 
'shall  be  taken,'  but  that  it  'may  be  taken'  before 
some  one  of  the  officers  named ;  and  it  seems  to  me  per- 
fectly consistent  with  the  former  law  which  permits 
some  other  officers  to  exercise  the  power.  "^® 

§  904.  Idem. — The  rule  is  well  settled  that  though 
the  law  does  not  favor  repeals  by  implication,  yet  a 
subsequent  statute  revising  the  subject  matter  of  the 
former  one  intended  as  a  substitute  for  it,  although  it 
contains  no  express  word  to  that  effect,  will  operate  a 
repeal  of  the  former,  to  the  extent  to  which  its  provi- 
sions are  supplied  or  repealed.^*  And  if  a  subsequent 
statute  be  not  repugnant  in  all  its  provisions  to  a  prior 

18  Ante,  §  900. 

19  (Tex.  Civ.  App.),  28  S.  W'.  691. 

20  Herndon  v.  Eeecl,  82  Tex.  651,  18  S.  W.  665. 

21  Stirman  v.  State,  21  Tex.  736. 


371  DISTEICT    JUDGES.  §§  905,906 

one,  jet  if  the  latter  statute  was  clearly  intended  to  pre- 
scribe the  only  rule  which  should  govern,  it  repeals  a 
prior  one.^^ 

§  905.  Authority  of  District  Judges  to  Take  Acknowledge- 
ments of  Married  Women  not  Revoked. — But,  as  above 
stated,  this  act  did  not,  it  seems,  repeal  the  act  cf 
April  30,  1846,  passed  at  the  same  legislature,  authoriz- 
ing district  judges  to  take  the  acknowledgments  of  hus- 
band and  wife  to  conveyances  of  property  in  which  she 
had  an  interest,  and  the  authority  of  such  officers  in 
that  particular  was  not  revoked.  In  Munroe  v.  Ar- 
ledge,-^  it  is  held  that  the  act  of  May  8,  1846,  author- 
izing commissioners  of  deeds  to  authenticate  instru- 
ments, being  passed  at  the  same  legislature  as  the  act 
of  May  12,  1846,  was  not  repealed  by  it,  although  by 
its  terms  the  act  of  May  12,  1846,  seemed  to  limit  the  au- 
thentication of  instruments  to  notaries  public  and 
county  clerks.  By  a  parity  of  reasoning  it  is  clear  that 
the  act  of  April  30,  1846,  was  not  repealed  by  the  act 
of  May  12,  1846,  passed  a  few  days  later  by  the  same 
legislature.  The  same  legislature  being  supposed  to 
have  but  one  mind  and  to  have  at  all  times  the  same 
governing  policy.^^ 

§  906.  Act  of  December  18,  1849— County  Clerks  Author- 
ized to  Take  Acknowledgments. — The  act  of  December  18, 
1849  (taking  effect  from  passage), ^^  authorized  clerks 
of  the  county  courts  to  take  acknowledgments  of  mar- 
ried women  under  the  same  rules  as  are  prescribed  for 
judges  of  the  supreme  and  district  courts  under  the  act 
of  April  30,  1846.     This  also  seems  to  imply  that  dis- 

22  Bryan  v.  Sundberg,  5  Tex.  423;  Rogers  v.  Watrous,  8  Tox.  6.5, 
58  Am.  Dec.  100;  St.  Louis  &  S.  W.  Ry.  Co.  v.  Kay,  85  Tex.  559,  22 
S.  W.  665;  ante,  §  646. 

23  23  Tex.  481. 

24  Galveston  S.  &  N.  G.  Ry.  Co.  v.  Gross,  47  Tex.  435;  Russell  v. 
Farquhar,  55  Tex.  361;   Selman  v.  Wolfe,  27  Tex.  72;   ante,   §  647. 

25  3   L.   T.   449. 


§§  907-909      WHO  MAY  TAKE  ACKNOWIiEDGMENTS.  372 

triet  judges  still  had  at  that  time  the  power  to  take  ac- 
kno^^•ledgmellts  of  married  women,  which  they  no  doubt 
had. 

§  907.  Act  of  April  6,  1861— Judges  of  Courts  of  Record 
Authorized — ^The  act  of  April  6,  1861  (entitled  "An  act 
prescribing  the  manner  of  authenticating  instruments 
for  record,"  taking  effect  from  passage),^®  provided 
that  acknowledgment  or  proof  of  every  instrument  for 
record  within  the  state  shall  be  taken  by  a  notary  pub- 
lic, clerk  of  the  county  court  or  judge  of  a  court  of  rec- 
ord. This,  of  course,  includes  a  district  judge.  The 
provisions  of  all  laws  in  so  far  as  they  conflict  with 
this  act  were  thereby  repealed.^'^ 

§  908.  Act  of  January  14,  1862 — Judges  of  Courts  of  Rec- 
ord Authorized. — The  act  of  January  14,  1862,  supple- 
mental and  amending  act  O'f  April  6,  1861  (taking  effect 
from  passage),^**  again  provided  that  proof  or  acknowl- 
edgment of  every  instrument  of  writing  for  record  shall 
be  taken  by  judges  of  the  courts  of  record,  etc.^^ 

§  909.  Act  of  November  13,  1866— Authority  of  Judges 
of  Courts  of  Records  Revoked. — The  act  of  November  13, 
1866  (entitled  "An  act  to  amend  section  11  of  an  act, 
to  provide  for  the  registry  o-f  deeds,  etc.,  approved  May 
12,  1846,"  taking  effect  from  passage)  ,^^  provided  that 
proof  or  acknowledgment  of  every  instrument  of  writ- 
ing for  record  shall  be  taken  when  within  this  state  by 
a  notary  public  or  clerk  of  the  county  court  of  any 
county  in  this  state.  It  seems  that  this  act  limits  the 
authentication  of  deeds  to  these  two  officers.^^ 

26  5  L.  T.  373. 

27  Ante,  §§  686-687. 

28  5  L.  T.  501. 

29  Ante,  §  688.  '  - 
SO  5  If.  T.  1128. 

31  Ante,  §  691. 


373  DISTEICT    JUDGES.  §§  910-912 

§  910.  Idem. — It  will  be  seen  that  since  the  passage 
of  the  act  cf  May  12,  1846,  the  acts  of  April  6,  1861, 
and  January  14,  1862,  were  passed  prescribing  the  man- 
ner of  authenticating  instruments  for  record,  and  pro- 
vided that  when  taken  within  the  state,  it  shall  be  be- 
fore a  notary  public,  clerk  or  judge  of  a  court  of  record, 
and  repealed  the  laws  in  conflict.  They  authorize 
judges  of  courts  of  record  to  take  acknowledgments  and 
the  act  of  May  12,  1846,  which  did  not,  was  repealed.^^ 
But  the  act  of  November  13,  1866,  ignored  the  acts  of 
April  6,  1861,  and  January  14,  1862,  and  amended  the 
act  of  May  12,  1846,  which  had  been  repealed,  and  pro- 
vided that  acknowledgments  within  the  state  shall  be 
taken  by  a  notary  public  or  county  clerk.^^  Where  an 
act  provides  that  an  acknowledgment  "shall"  be  taken 
by  certain  oflacers,  it  limits  the  act  to  those  officers.^* 
And  it  is  clear  that  this  was  intended  as  a  substitute 
for  the  previous  acts  authorizing  district  judges  to  take 
acknowledgments,  and  repeals  such  acts  to  that  ex- 
tent^^ 

§  911.  Act  of  August  8,  1870 — District  Judges  Omitted. — 
The  act  of  August  8,  1879  (taking  effect  from  pas- 
sage),^^  authorizing  district  clerks  and  their  deputies 
and  notaries  public  to  take  acknowledgments,  omitted 
district  judges  and  repealed  laws  in  conflict  there- 
with.^'' But  it  seems  that  this  would  not  revoke  the 
authority  of  district  judges  if  any  existed.^* 

§  912.  Act  of  May  6,  1871 — District  Judges  Authorized  to 
Take  Acknowledgments. — The  act  of  May  6,  1871  (taking 

32  Herndon  v.  Keed,  82  Tex.  651,  18  S.  W.  665;  ante,  §  623. 

33  As  to  amendment  of  repealed  statute,  see  ante,  §  692. 

34  Herndon  v.  Eeed,  82  Tex.  651,  18  S.  W.  665. 

35  Ante,  §§  903,  904;  Bryan  v.  Sundberg,  5  Tex.  423;  Eogers  v. 
Watrous,  8  Tex.  65,  58  Am.  Dec.  100;  S.  L.  &  S.  W.  Ey.  Co.  v.  Kay, 
85  Tex.  559,  22  S.  W.  665;  Stir  man  v.  State,  21  Tex.  734;  Thouvenin 
V.  Kodrigues,  24  Tex.  468.     But  see  ante,  §  692. 

36  6  L.  T.  223. 

37  Ante,  §§   695,  703. 

38  Ante,   §§   621-631. 


§§  913-915      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  374 

effect  from  passage),^'*  purporting  to  amend  section  11 
of  act  of  Mi\y  12,  1846,  provided  that  acknowledgments 
"may"  be  taken  within  the  state  before  some  notary 
public,  district  clerk  or  judge  of  supreme  or  district 
court.  This  is  repealed  by  the  Revised  Statutes  of 
1879,  authorizing  other  officers  to  authenticate  instru- 
ments and  omitting  district  judges.*^ 

§  913.  Act  of  July  28,  1876— Validates — The  act  of 
July  28,  1876  (taking  effect  November  19,  1876),**  vali- 
dates the  certificates  of  acknowledgments  of  deeds  of 
married  women,  taken  before  any  authorized  officer, 
whenever  such  certificate  of  acknowledgment  is  invalid 
because  same  is  wanting  in  some  word  required  by 
law,  provided  that  such  certificate  shall  show  on  its  face 
that  the  married  woman  was  examined  by  the  officer 
taking  the  acknowledgments  separate  and  apart  from 
her  husband,  and  having  the  same  fully  explained  to 
her,  she  declared  that  she  had  willingly  signed  the  same, 
and  that  she  did  not  wish  to  retract  it ;  or  words  to  that 
effect.*^ 

§  914.  Revised  Statutes  of  1879  and  1895— Authority  of 
District  Judges  Revoked. — The  Revised  Statutes  of  1879 
(and  1895,  purporting  to  be  a  continuation  of  act  of 
May  6,  1871),  amends  said  act  by  providing  that  ac- 
knowledgments within  this  state  "may"  be  taken  before 
the  clerk  of  the  district  court,  a  judge  or  clerk  of  the 
county  court,  or  a  notary  public,  and  omits  district 
judges.  This  revokes  the  authority  of  district  judges 
to  take  ackuowledgments."*^ 

§  915.     Idem The  Revised  Statutes  of  1879   (Final 

Title,  sec.  4),  repeals  all  general  laws  not  incorporated 

39  6   L.   T.   999. 

40  TalTaert  v.  Dull,  70  Tex.  679,  8  S.  W.  530;  ante,  §  703.  As 
to  amendment  of  repealed  statute,  see  ante,  §  692. 

41  8  L.  T.  897. 

42  McDaniel  v.  Harold,  1  V.  G.  521;  post,  §  1049. 

43  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530. 


375  BISTEICT  JUDGES.  §  915 

therein.  As  district  judges  were  not  therein  authorized 
to  take  acknowledgments,  their  authority  was  re- 
voked.*^    They  were  not  thereafter  authorized. 

44   See  ante,  §§   107-110. 


§  916  WHO  MAY  TAKE  ACKNOWLEDGMENTS.  376 


CHAPTER  XXIV. 

WHO     MAY     TAKE     ACKNOWLEDGMENTS— JUDGES    OF     THE 
SUPEEME  COUET  AND  COUETS  OF  APPEAL. 

§  916.     Summary   of   statutes. 

§  917.  Act  of  February  5,  1840 — Supreme  judges  authorizerl  to  take 
acknowledgments. 

§  918.  Note. 

§  919.  Act  of  April  30,  1846 — Supreme  judges  autliorized  to  take 
acknowledgments  of  married  women. 

§  92D.  Note. 

§  921.  Act  of  May  12,  1846  — Authority  of  supreme  judges  to  taki^ 
single  acknowledgment  revoked. 

§  92'2.  Note. 

§  923.  Act  of  April  6,  1861 — Judges  of  supreme  court  again  au- 
thorized. 

§  924.  Act  of  January  14,  1862 — Judges  of  supreme  court  again 
authorized. 

§  925.  Act  of  November  13,  1866— Authority  of  judges  of  supreme 
court  revoked. 

§  926.     Act   of  August   S,   3  870 — Judges   of  supreme   court   omitted. 

§  927.  Act  of  May  6,  1871 — Judges  of  supreme  court  again  au- 
thorized. 

§  928.     Act  of  May  6,  1876— Court  of  appeals. 

§  929.     Act  of  July  28,  1876— Validates. 

§  930.  Eevised  Statutes  of  1879— Authority  of  judges  of  supreme 
court  revoked. 

§  931.     Act   of  April   13,   1892— Court   of  civil   appeals. 

§  916.  Summary  of  Statutes. — From  March  17,  1841, 
to  July  13,  1846,  judges  of  the  supreme  court  were  au- 
thorized to  take  single  acknowledgments.  From  March 
17,  1841,  to  June  22,  1846,  query,  were  they  authorized 
to  take  acknowledgments  o-f  married  women?  From 
June  22,  1846,  to  April  6,  1861,  they  were,  it  seems,  au- 
thorized to  take  acknowledgments  of  married  women. 
From  July  13,  1846,  to  April  6,  1861,  they  were  not  au- 
thorized to  take  single  acknowledgments.  From  April 
6,  1861,  to  November  13,  1866,  they  were  authorized  to 
take  both  single  and  joint  acknowledgments.  From 
November  13,  1866,  to  May  6,  1871,  they  were  not  au- 


377  SUPEEME    JTJDGES.  §§  917-919 

thorized  to  take  either  joint  or  single  acknowledgments. 
From  May  6,  1871,  to  the  adoption  of  the  Revised  Stat- 
utes of  September  1,  1879,  they  were  authorized  to  take 
both  single  and  joint  acknowledgments.  Thereafter 
they  were  not  authorized. 

§  917.  Act  of  February  5,  1841 — Supreme  Judges  Author- 
ized to  Take  Acknowledgments. — The  first  act  to  authorize 
acknowledgments  by  judges  of  the  supreme  court  within 
this  state  was  that  of  February  5,  1841  (taking  effect 
March  17,  1841).^  This  act  provided  that  every  grant, 
deed  or  instrument  for  the  conveyance  of  real  estate  or 
personal  property,  or  both,  or  for  the  settlement  thereof 
in  marriage,  etc.,  as  well  as  in  every  other  deed  or  in- 
strument required  or  permitted  by  law  to  be  registered, 
shall  be  duly  registered  upon  acknowledgment  or  proc^f 
before  any  chief  or  associate  justice  of  the  supreme 
court,  etc.  It  also  provided  that  if  instruments  were 
properly  certified  by  such  officer,  subscribing  witnesses 
were  not  necessary.^ 

§  918.  Note. — \\'hile  the  terms  of  this  act  are  general 
enough  to  include  acknowledgments  of  married  women 
as  well  as  those  of  other  persons,  there  may  be  a  ques- 
tion as  to  its  applying  to  them,  as  the  act  of  February 
3,  1841,  passed  two  days  earlier  by  the  same  legislature, 
authorized  other  officers  to  take  her  acknowledgments.^ 
The  authority  of  the  above  officers,  as  to  acknowledg- 
ments of  married  women,  was  probably  revoked  by  the 
act  O'f  April  30,  1846,*  and  as  to  those  of  other  persons, 
by  the  act  of  May  12,  1846.^ 

§  919.  Act  of  April  30,  1846 — Supreme  Judges  Authorized 
to  Take  Acknowledgments  of  Married  Women — The  act  of 

1  2  L.  T.  633. 

2  Ante,  §  620. 

3  Ante,   §§   627-631,   652-656. 

4  Ante,   §   641. 

5  Ante,  §§  644-646. 


§§  920-922      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  378 

April  30,  1846  (taking  efPect  June  22,  1846),^  provided 
that  any  judge  of  the  supreme  or  district  court  or 
notary  public  may  take  the  acknowledgments  of  hus- 
band and  wife  of  deeds  to  her  separate  property,  home- 
stead and  other  exempt  property  after  private  examina- 
tion of  the  wife.  This  act  repeals  all  former  laws  con- 
cerning the  mode  of  conveying  property  in  which  the 
wife  has  an  interest.'^ 

§  920.  Note. — The  question  as  to  whether  or  not  this 
act  revokes  the  authority  of  officers  authorized  by 
former  acts  to  take  acknowledgments  of  married  women, 
seems  not  to  have  been  directly  decided.^  The  author- 
ity given  under  this  act  to  above  officers  was,  it  seems, 
not  revoked  by  the  act  of  May  12,  1846,  but  remained 
until  the  act  of  April  6,  1861,  again  authorized  them.^ 

§  921.  Act  of  May  12,  1846— Authority  of  Supreme  Judges 
to  Take  Single  Acknowledgments  Revoked. — The  act  of  May 
12,  1846  (taking  effect  July  13,  1846),^*^  provided  that 
proof  or  acknowledgment  of  every  instrument  of  writ- 
ing for  record  shall  be  taken  by  some  one  of  the  follow- 
ing officers :  First,  when  acknowledged  or  proven  within 
the  state  before  some  notary  public  or  clerk  of  the 
county  court  of  any  county  in  the  state,  etc.^* 

§  922.  Note. — This  act  omits  supreme  judges  and  no 
doubt  repeals  the  law  authorizing  them  to  take  single 
acknowledgments.^^  But  this  act  probably  does  not 
revoke  the  authority  of  supreme  judges  to  take  the  joint 
acknowledgments  of  husband  and  wife  authorized  by 

6  2  L.  T.  1462. 

7  Ante,    §    637. 

8  See  ante,  §  641. 

9  Post,   §   922. 

10  2  L.  T.  1544. 

1 1  Ante,  §  644. 

12  Herndon  v.  Keed,  82  Tex.  651,  18  S.  W.  665.     Also  ante,  §  646. 


379  SUPREME    JUDGES.  §§  923-926 

the  act  of  April  30,  1846,  as  both  of  these  acts  were 
passed  by  the  same  legislature.^^ 

§  923.  Act  of  April  6,  1861 — Judges  of  Supreme  Court 
Ag-ain  Authorized. — The  act  of  April  6,  1861  (taking 
effect  from  passage)/*  provided  that  acknowledgments 
within  the  state  shall  be  taken  by  a  notary  public,  clerk 
of  the  county  court  or  a  judge  of  a  court  of  record. 
The  supreme  court  being  a  court  of  record,^^  judges 
thereof  were  authorized  to  take  any  and  all  acknowledg- 
ments. 

§  924.  Act  of  January  14,  1862— Judges  of  Supreme  Court 
Again  Authorized. — The  act  o-f  January  14,  1862  (taking 
effect  from  passage),***  again  authorized  judges  of 
courts  of  record  to  take  acknowledgments. 

§  925.  Act  of  November  13,  1866— Authority  of  Judges 
of  Supreme  Court  Revoked. — The  act  of  November  13,  1866 
(taking  effect  from  passage),*'"  provided  that  acknowl- 
edgments within  the  state  ffhall  be  taken  by  a  notary 
public  or  a  clerk  of  the  county  court  of  any  county  in 
the  state.  This  seems  to  limit  the  authentication  of  in- 
struments to  the  officers  therein  mentioned,  and  omits 
judges  of  the  supreme  court.** 

§  926.  Act  of  August  8,  1870— Judges  of  Supreme  Court 
Omitted— The  act  of  August  8,  1879  (taking  effect ^from 
passage),*'*  authorized  district  clerks  and  their  deputies 
and  notaries  public  to  take  acknowledgments.  But 
again  supreme  judges  were  omitted. 

13  Ante,  §  647.  Also  Munroe  v.  Arledge,  23  Tex.  481;  Galveston 
S.  &  N.  G.  R.  R.  Co.  V.  Gross,  47  Tex.  355;  Russell  v.  Farquhar,  55 
Tex.  361. 

14  5   L.   T.   373. 

15  2  L.  T.  1555. 
10  5  L.  T.  501. 

17  5   L.   T.   1128. 

18  Ante,   §   646. 

19  6   L.   T.   223. 


§§  927-930     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  380 

§  927.  Act  of  May  6,  1871— Judges  of  Supreme  Court 
Again  Authorized. — The  act  of  May  6,  1871^^  (taking 
effect  from  passage,  amending  section  11  of  the  act  of 
May  12,  1846),  provided  that  acknowledgments  may  be 
taken  Avhen  within  the  state  before  some  notary  public, 
district  clerk  or  judge  of  the  supreme  or  district  court. 
This  act  is  amended  by  the  Revised  Statutes  of  1879.^* 

§  928.  Act  of  May  6,  1876— Court  of  Appeals. — By  the 
act  of  May  6,  1876,  the  court  of  appeals  was  established 
as  a  court  of  record,  but  judges  thereof  were  not  au- 
thorized to  take  acknowledgments  and  proof. 

§  929.  Act  of  July  28,  1876— Validates.— The  act  of 
July  28,  1876^^  (taking  effect  November  19,  1876),  vali- 
dates the  certificates  of  acknowledgment  of  deeds  of 
married  women  taken  before  any  authorized  officer 
whenever  such  certificate  of  acknowledgment  is  invalid, 
because  the  same  is  wanting  in  some  word  required  by 
law;  'provided  that  such  certificate  shall  show  on  its 
face  that  the  married  woman  was  examined  by  the  of- 
ficer taking  the  acknowledgment  separate  and  apart 
from  her  husband,  and  having  the  same  ^fully  explained 
to  her,  she  declared  that  she  had  willingly  signed  the 
same  and  that  she  did  not  wish  to  retract  it;  or  words 
to  that  effect.23 

§  930.  Revised  Statutes  of  1879 — ^Authority  of  Judges  of 
Supreme  Court  Revoked. — The  Revised  Statutes  of  1879,^ 
amending  the  act  of  May  6, 1871,  provides  that  acknowl- 
edgments within  the  state  may  be  made  before  a  clerk 
of  the  district  court,  a  judge  or  clerk  of  the  county 
court,  a  notary  public,  and  omits  judges  of  the  supreme 
court.     The  Final  Title  of  Revised  Statutes  repeals  all 

20  6  L.   T.   999. 

21  Ante,   §   692. 

22  8  L.  T.  897. 

23  McDaniel  v.  Harold,  1  U.  C.  521. 

24  Article  4305. 


381  SUPEEME  JUDGES.  §  931 

general  laws  not  included  in  Kevised  Statutes.  There- 
after, judges  of  the  supreme  court  were  not  authorized 
to  take  acknowledgments.^^ 

§  931.  Act  of  April  13,  1892— Court  of  Civil  Appeals. — 
The  act  o'f  April  13,  1892,-'^  establishing  the  court  of 
civil  appeals,  does  not  authorize  the  judges  thereof  to 
take  acknowledgments. 

25  Talbert  v.  Dull,  70  Tex.  679,  8  S.  W.  530. 

26  10  L.  T.  389. 


§§  932-934      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  382 


CHAPTER  XXV. 

WHO   MAY   TAKE    ACKNOWLEDGMENTS— FEDERAL    JUDGES. 

§  932.     Summary  of  statutes. 

§  933.     Act  of  April  6,  1861 — 'Judges  of  courts  of  record  authorized. 
§  934.  Idem. 

§  931).  Idem. 

§  936.     Act  of  November  13,  1866 — Authority  of  judges  of  courts  of 
record  revoked. 

§  932.  Summary  of  Statutes. — It  appears  from  the  fol- 
lowing statutes  that  judges  of  the  United  States  cir- 
cuit and  district  courts,  as  "judges  of  the  courts  of  rec- 
ord," possibly  were  at  one  period,  to  wit,  from  April  6, 
1861,  to  November  13,  1866,  authorized  to  authenticate 
instruments  for  record  within  this  state. 

§  933.  Act  of  April  6,  1861 — Judges  of  Courts  of  Record 
Authorized. — The  act  of  April  6,  1861*  (taking  effect 
from  passage),  provided  that  proo'-f  of  every  instrument 
of  writing  for  record  shall  be  made  by  some  one  of  the 
following  officers,  first,  when  acknowledged  or  proven 
within  this  state,  before  some  notary  public,  clerk  of 
the  county  court  or  judge  of  a  court  of  record. 

§  934.  Idem. — United  States  circuit  and  district 
courts  were  courts  of  record,  and  were  courts  within 
the  state.  It  is  held  that  while  a  United  States  circuit 
court  may  not  technically  be  a  court  o'f  the  state,  it  is  a 
court  within  it.^  And  that  while  a  state  cannot  confer 
jurisdiction  on  a  federal  court  without  the  consent  of 
the  parties,  it  may  with  their  consent.^  Where  the  act 
of  April  3,  1891,^  provided  that  any  dissatisfied  "rail- 

1  5  L.  T.  373. 

2  Schollenberger  v.  Schollenberger,  96  U.  S.  369,  378,  24  L.  ed. 
853. 

3  Idem. 

4  §  6;   10  L.  T.  60. 


383  FEDERAL    JUDGES.  §§  935,936 

road  company  or  other  party  at  interest,  may  file  a 
petition,  in  a  court  of  competent  jurisdiction  in  Travis 
county,  Texas,  ag^ainst  said  commission  as  defendant," 
it  was  held  that  the  United  States  circuit  court  for  the 
western  district  of  Texas  is  "a  court  of  competent  juris- 
diction in  Travis  county."  The  court  saying,  "it  comes 
within  the  very  terms  of  the  act."^  From  this  it  would 
seem  that  they  were  authorized  to  take  acknowledg- 
ments by  above  act. 

§  935.  Idem. — Judges  of  the  courts  O'f  record  were 
again  authorized  to  take  acknowledgments  by  the  act 
of  January  14,  1862  (taking  effect  from  passage).® 

§  936.  Act  of  November  13,  1866— Authority  of  Judges  of 
Courts  of  Record  Revoked. — The  act  of  November  13,  1866 
(taking  effect  from  passage),''  provided  that  acknowl- 
edgments within  the  state  shall  be  taken  by  a  notary 
public  or  clerk  of  the  county  court  of  any  county  in 
the  state.  This  seems  to  limit  the  authentication  of 
deeds,  etc.,  to  these  two  officers.^  There  seems  to  be  no 
later  act  which  would  authorize  federal  judges  within 
this  state  to  authenticate  instruments  for  record. 

5  Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154  U.  S.  389-392,  38 
L.  ed.  1021,  14  Sup.  Ct.  Rep.  1062. 

6  5  L.  T.  501. 

7  '5  L.  T.  428. 

8  Herndon  v.  Reed,  82   Tex.  651,   18   S.   W.  665,  and  McCelvey  v. 
Cryer  (Tex.  Civ.  App.),  28  S.  W.  69.     And  ante,  §  646. 


WHO  MAY  TAKE  ACKNOWLEDGMENTS.  384 


CHAPTER  XXVI. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS- COUNTY    CLERKS, 
THEIR   DEPUTIES,   AND   PRO   TBM   CLERKS. 

§  957.     Summary   of   statutes. 

§  9SS.     Act   of  December   20,   1836— County   clerks   authorized— Note. 
§  939.  Idem. 

§  94D.  County  clerks  authorized   to   take   proof   of   handwriting. 

§  941.  '■'Pro  tem"  clerk. 

§  942.  Acknowledgments  by   county  clerks. 

§  943.     Act  of  December  21,  1837 — Deputy  county  clerks. 
§  94'4.  Idem. 

§  945.     Act, of  January   "V9,   1839— County   clerks   authorized  to   take 
acknowledgments   of   deeds,   to   be   recorded   in   their    own 
counties. 
§  946.  Validates. 

§  947.     Act   of  February  5,   1840 — County   clerks  authorized  to   take 
acknowledgments   of   instruments   to   be   recorded   in   their 
own  counties. 
§  948.  Validated. 

§  949.     Act  of  December  24,  1840 — Validates  acts  of  Samuel  Todd. 
§  95^0.     Act  of  February  3,  1841 — County  clerks  omitted. 
§  951.     Act   of  February  5,   1841 — Validates. 
§  952.  Idem. 

§  953.     County    clerks    authorized    to    take    acknowledgments    of    in- 
struments to  be  recorded  in  their  own  counties. 
§  954.  Idem. 

§  95"5.     Act   of  April  30,  1846^ — County  clerks  omitted— Note. 
§  956.  Idem. 

§  957.     Act  of  May  12,   1846 — County  clerks  authorized  to  take   ac- 
knowledgments. 
§  958.  Authority   of   county   clerks   extended — Of    certain   other 

officers  revoked. 
§  959.     Act  of  May  13,   1846— Deputies. 
§  960.  Idem. 

§  961.     Act  of  March  16,  1848— Deputies. 

§  962.     Act  of  March  16,  1848 — Deputies  and  pro  tem  clerks. 
§  963.     Act  of  December  18,  1849 — County  clerks  authorized  to  take 

acknowledgments  of  married  women. 
§  964.     Act  of  November  24,  1851— Validates. 
§  965.     Act   of   February   9,   1856 — Deputy   county   clerks   authorized 

to  take  acknowledgments. 
§  966.     Act  of  August  19,  1856— Validates. 


385  COUNTY   CLEEKS.  §  937 

§  967.     Act  of  February  9,  1S60— Validates. 

§  968.  Act  of  April  6,  1861 — County  clerks  authorized  to  take  ac- 
knowledgments. 

§  969.  Act  of  January  14,  1862 — County  clerks  and  their  deputies 
authorized  to  take  acknowledgments. 

§  970.     Act   of  November  13,  1866 — -County  clerks  again   authorized. 

§  971.     Constitution   of   1869 — District   clerks   ex-officio  county  clerks. 

§  972.  Act  of  August  8,  1870 — District  clerks,  their  deputies  and 
notaries  authorized  to  take  acknowledgments. 

§  973.     Act  of  May  6,  1871 — District  clerks  again  authorized. 

§  974.     Act  of  May  2.5,  1871— Validates. 

§  975.  Constitution  of  1875  — County  and  district  clerks  authorized 
when. 

§   976.     Act  of  May  25,  1876 — Deputy  county  clerks  authorized. 

§  977.     Act  of  June  16,  1876— Validates. 

§  978.  Act  of  March  18,  1879 — District  and  county  clerks  one  per- 
son—  Validates. 

f  9f9.  Eevised  Statutes  of  1879  and  1895 — County  and  district 
clerks  again  authorized. 

S  98D.  Eemained  in  force. 

§  937.  Summary  of  Statutes — (1)  County  Clerks — Single 
Acknowledgments — From  December  20,  1836,  to  July  13, 
1846,  county  clerks  were  authorized  to  take  "single"  ac- 
knowledgments of  instruments  to  be  recorded  in  their 
own  counties  but  not  in  other  counties.  From  July  13, 
1846,  to  the  election  of  district  clerks  (who  were  made 
ex-officio  county  clerks)  under  the  constitution  of  1869, 
and  the  abolition  of  the  office  of  county  clerk,  they  were 
authorized  to  take  single  acknowledgments  of  instru- 
ments to  be  recorded  anywhere.  From  then  until  the 
election  of  county  clerks  under  the  constitution  of  1875, 
district  clerks,  as  ex-officio  county  clerks,  were  author- 
ized to  take  all  acknowledgments.  At  all  times  there- 
after county  clerks  were  authorized  to  take  all  acknowl- 
edgments. 

(2)  Acknowledgments  of  Married  Women. — Prior  to  March 
17,  1841,  county  clerks  were  authorized  to  take  acknowl- 
edgments of  married  women,  when  they  were  competent 
to  convey,  under  same  conditions  as  others.  From 
March  17,  1841,  to  December  18,  1849,  it  is  questionable 
if  they  were  authorized.     At  all  times  thereafter,  when 

25 


§§938,939     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  386 

the  office  was  not  mero-ed  with  that  of  district  clerk, 
they  were  authorized  to  take  acknowk^dgments  of  mar- 
ried women.  (Merged  from  election  under  constitu- 
tion of  1869  to  that  of  1875.) 

(3)  Deputies. — After  the  appointment  of  deputies  was 
authorized  by  act  of  December  21,  1837,  they  were  al- 
ways authorized  when  their  principals  would  be. 

(4)  *'Pro  Tern"  Clerks — From  December  20,  1836,  to 
July  13,  1846,  "pro  tern"  clerks  were  authorized  to  take 
acknowledgments  the  same  as  their  principals.  From 
July  13,  1846,  to  August  7,  1848,  this  office  was  abol- 
ished. From  August  7,  1848,  to  December  31,  1866,  the 
appointment  of  "pro  tem"  county  clerks  was  provided 
for,  but  it  is  not  clear  that  they  were  authorized  to 
take  acknowledgments.  Thereafter  "pro  tem"  county 
clerks  were  not  provided  for. 

§  938.  Act  of  December  20,  1836— Clerks  of  County  Courts 
Authorized  to  Take  Acknowledgments,  etc. — Previous  to  the 
act  of  December  20,  1836  (taking  effect  from  passage),* 
clerks  of  the  county  courts  were  not  authorized  to  au- 
thenticate nor  record  instruments.^  This  act  made 
county  clerks  the  recorders  and  authorized  them  to  cer- 
tify to  the  proof  or  acknowledgments  of  instruments  to 
be  recorded  in  their  offices.^ 

§  939.  Idem. — Section  35  of  the  said  act  is  as  fol- 
lows: "The  clerks  of  the  county  courts  shall  be  the 
recorders  for  their  respective  counties,  and  it  shall  be 
their  duty  to  record  all  deeds,  conveyances,  mort- 
gages, and  other  liens,  and  all  other  instruments  of 
writing  required  by  law  to  be  recorded  in  their  offices, 
which  are  presented  to  them;  provided  one  of  the  wit- 
nesses of  the  number  required  by  law  shall  swear  to 
the  signature  of  the  signer,  or  he  himself  so  acknowl- 

1  1  L.  T.  1215;  H.  D.  2752;  P.  D.  4973. 

2  See  chapter  1. 

3  Post,  §  1021. 


387  COUNTY   CLEEKS.  §§  940-942 

edge  the  same;  which  shall  be  certified  by  the  recorder, 
and  form  part  of  the  record ;  and  all  deeds,  conveyances, 
mortgages  and  other  liens  shall  be  recorded  in  the 
county  where  the  property  is  situated."* 

§  940.  County  Clerks  Authorized  to  Take  Proof  of  Hand- 
writing.— Section  38  of  said  act^  provided  that:  "All 
titles,  liens,  mortgages  or  other  colors  of  title,  be*fore 
they  can  be  admitted  upon  record,  must  be  proved  by 
at  least  two  subscribing  witnesses,  if  living  in  the 
county,  and  if  not  living  in  the  county,  then  the  hand- 
writing shall  be  proven  either  before  some  county  judge 
or  before  the  clerk  of  the  county  court  in  whose  office 
such  record  is  to  be  made ;  and  in  all  cases  the  certificate 
of  the  county  judge,  that  the  witness  appeared  before 
him  and  acknowledged  his  signature,  or  that  the  hand- 
writing of  the  same  was  duly  proven,  shall  be  sufficient 
evidence  to  authorize  the  clerk  of  the  county  court  to 
enter  such  title,  lien,  mortgage  or  other  color  (ft  title, 
upon  record."^ 

§  941.  "Pro  Tern"  Clerk — Section  9  of  said  acf  pro- 
vided that  in  case  of  vacancy  in  the  office  of  the  county 
clerk,  or  during  unavoidable  absences  of  such  clerk,  the 
court  in  term  time  and  the  chief  justices  in  vacation 
may  appoint  a  clerk  pro  tem  who  shall  discharge  the 
same  duties  and  have  the  same  authority  as  the  regu- 
larly elected  clerk. 

Seal. — Section  12  of  said  act*  provides  for  a  seal,  but 
does  not  require  its  use  in  the  authentication  of  in- 
struments.^ 

§  942.  Acknowledgments  by  County  Clerks — It  is  ap- 
parent that  this  and  the  next  section  do  not  authorize 

4  Ante,  §  599. 

5  1  L.  T.  1215;  H.  D.  2755;  P.  D.  4982. 

6  Ante,  §  601. 

7  H.  D.  238. 

8  H.   D.   241. 

9  See  ante,  §  490,  etc. 


§§  943-945      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  388 

county  clerks  to  take  aeknowledpiients  and  proof  of 
instruments  to  be  recorded  in  other  counties  than  their 
own;  but  such  registration  lias  been  since  validated  by 
the  act  of  February  9,  1860,  provided  vested  rights 
would  not  be  affected  thereby.*^  A  conveyance  was 
made  in  1837  and  proved  for  record  by  a  subscribing 
witness  before  the  county  clerk  of  T.  county  and  soon 
afterward  was  recorded  in  G.  county  where  the  land 
lay.  It  was  objected  to  when  offered  in  evidence  be- 
cause the  county  clerk  in  T.  county  had  no  authority 
to  take  the  proof  in  1846,  the  land  being  in  a  different 
county;  but  it  was  held  that  the  healing  acts  of  Feb- 
ruary 5,  1841,  and  February  9,  1860,  legalized  the  regis- 
tration.^^ In  the  case  of  Beaumont  Pasture  Co.  v.  Pres- 
ton et  al.,^^  it  is  held  that  while  the  act  of  February  5, 
1841,  does  not  validate  acknowledgments  taken  by 
county  clerks  of  instruments  to  be  recorded  out  of  their 
own  counties,  the  act  of  February  9,  1860,  does. 

§  943.  Act  of  December  21,  1837— Deputy  County  Clerks. 
The  act  of  December  21,  1837,^^  provides  that  clerks  of 
the  county  and  district  courts  are  authorized  to  appoint 
a  deputy  to  discharge  the  duties  of  the  office  whose  ac- 
tions the  clerk  shall  be  responsible  for. 

§  944.  Idem. — They  were  authorized  to  take  acknowl- 
edgments.'* In  1881  a  certificate  of  acknowledgment 
of  a  married  woman,  made  by  an  officer  styling  himself 
special  deputy  county  clerk,  was  held  to  be  valid;  as 
deputy  county  clerks  were  authorized,  the  addition  of 
the  word  "special"  would  not  vitiate  it.*^ 

§  945.  Act  of  January  19, 1839 — County  Clerks  Authorized  to 
Take  Acknowledgments  of  Deeds  to  be  Recorded  in  Their  Own 

10  Post,  §  1029. 

11  Crayton  v.  Hamilton,  37  Tex.  269. 

12  65  Tex.  456. 

13  1  L.  T.  1453. 

14  See  ante,  §  587.  Also  Eose  v.  Newman,  26  Tex.  135,  80  Am. 
Dec.  646;  Cook  v.  Knott,  28  Tex.  90;  Frizzell  v.  Johnson,  30  Tex.  32. 

15  Chicago  etc.  Ey.  Co.  v.  Titterington,  84  Tex  219,  31  Am.  St. 
Eep.  39,  19  S.  W.  472. 


389  COUNTY   CLEEKS.  §§  946-950 

Counties.— The  act  of  January  19,  1839  (taking  effect 
from  passage), ^*^  again  authorized  county  clerks  to  cer- 
tify to  the  proof  or  acknowledgment  O'f  instruments  to 
be  recorded  in  their  offices,  but  it  does  not  authorize 
them  to  take  such  proof  or  acknowledgment  of  instru- 
ments to  be  recorded  in  other  counties.^'^ 

§  946.  Validated — Such  improper  acknowledgments 
taken  in  the  wrong  county  have  since  been  validated 
by  the  acts  of  February  5,  1841,  and  February  9,  1860.*^ 

§  947.  Act  of  February  5, 1840— County  Clerks  Authorized  to 
Take  Acknowledgments  of  Instruments  to  be  Recorded  in  Their 
Own  Counties. — The  act  of  February  5,  1840  ( taking  effect 
March  16,  1840),^^  authorized  clerks  of  the  county 
court  and  their  deputies  to  admit  conveyances  to  record 
on  the  acknowledgment  of  the  party  or  parties,  or  on 
the  proof  of  any  such  acknowledgment  by  the  legal 
number  of  witnesses  thereto  made  in  the  offices  of  the 
respective  clerks.^** 

§  948.  Validated — AA'hile  this  does  not  authorize  the 
acknowledgment  or  proof  by  them  of  instruments  to  be 
recorded  in  other  counties  than  their  own,  such  regis- 
trations have  since  been  validated,  except  as  to  vested 
rights.^* 

§  949.  Act  of  December  24,  1840— Validates  Acts  of 
Samuel  Todd. — The  act  of  December  24,  1840,^^  legalizes 
the  acts  of  Samuel  Todd,  county  clerk  of  Shelby  county, 
and  his  deputies. 

§  950.  Act  of  February  3,  1841— County  Clerks  Omitted.— 
Act  of  February  3,  1841,^^  provided  for  the  acknowl- 

16  2  L.  T.  52;  H.  D.  2760;  P.  D.  4974. 

17  Ante,  §  608. 

18  Post,  §§  1019,  1029. 

19  2  L.  T.  328;  H.  D.  2768;  P.  D.  4975. 

20  Ante,  §  613. 

21  Post,  §  1019. 

22  2  L.  T.  613. 

23  2  L.  T.  608.  :  ' 


§§  951-953      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  390 

edgmoiit  of  deeds  by  married  women  and  authorized 
judges  of  the  district  court  and  chief  justices  of  the 
county  court  to  take  the  same,  omitting  county  clerks.^"* 

§  961.  Act  of  February  5,  1841— Validates. — Section  20 
of  the  act  of  February  5,  1841  (taking  effect  March  17, 
1841),^^  validated  the  registration  of  conveyances  here- 
tofore registered,  provided  they  shall  have  been  ac- 
knowledged by  the  grantor  or  the  grantors  befoi'e  the 
chief  justice,  notary  public  or  clerk  of  the  county  court 
in  whose  office  such  record  is  proposed  to  be  made,  or 
proof  before  such  officers  by  one  or  more  o'f  the  sub- 
scribing witnesses ,  and  certified  by  such  officer ;  any  ob- 
scurity or  conflict  in  the  existing  laws  to  the  contrary 
notwithstanding.^^ 

§  952.  Idem. — While  this  does  not  seem  to  validate 
acknowledgments  of  county  clerks  where  the  acknowl- 
edgments were  taken  and  records  made  by  clerks  of  dif- 
ferent counties,  the  act  of  February  9,  1860,  does  in  so 
far  as  vested  rights  would  not  be  affected.^'' 

§  953.  County  Clerks  Authorized  to  Take  Acknowledg- 
ments to  be  Recorded  in  Their  Own  Counties. — Section  21  of 
said  act  of  February  5,  1841,^*  provided  that  "any  grant, 
deed  or  instrument  'for  the  conveyance  of  real  estate,  or 
personal,  or  both,  or  for  the  settlement  thereof  in  mar- 
riage, or  separate  property  or  conveyance  of  same  in 
mortgage,  on  trust  to  uses,  or  on  conditions,  as  well  as 
any  and  every  other  deed  or  instrument  required  or 
permitted  by  law  to  be  registered,  hereafter  to  be  made 
and  recorded,  shall  be  duly  registered  in  the  office  of 

24  Ante,   §   617. 

25  2  L.  T.  633;  H.  D.  2776;  P.  D.  4977. 

26  Ante,   §  619. 

27  Post,  §  1029;  Beaumont  Pasture  Co.  v.  Preston  and  Smith,  65 
Tex.  456;  Crayton  v.  Hamilton,  37  Tex.  369.  And  see  Meuley  v. 
Zigler,  23  Tex.  93;  McDonald  v.  Morgan,  27  Tex.  506;  Butler  v. 
Dunagan,  19  Tex.  565. 

28  H.  D.  2777;  P.  D.  4978;  2  L.  T.  633. 


391  COUNTY  CLEEKS.  §  954 

the  proper  county  upon  the  acknowledgment  of  the 
party  or  parties  signing  the  same  before  the  register 
or  clerk  of  the  county  court  of  that  county,  or  chief  jus- 
tice of  the  county,  or  a  notary  public  thereof,  or  any  as- 
sociate, or  the  chief  justice  of  the  supreme  court,  or 
proved  by  a  subscribing  witness  before  any  such  officer, 
and  certified  by  him  for  record ;  and  if  so  acknowledged 
there  need  be  no  subscribing  witnesses. "^^ 

§  954.    Idem. — There  is  some  question  as  to  whether 
or  not  this  act  authorized  county  clerks    to  take    ac- 
knowledgments of  married  women.     Its  terms  are  gen- 
eral enough  to  include  hers  as  well  as  others,  and,  sub- 
sequent statutes  in  practically  the  same  terms  have 
uniformly  been  held  to  include  and  authorize  married 
women's  acknowledgments  as  well  as  others.     The  stat- 
ute of  May  6,  1871,^**  provided  that  "proof  or  acknowl- 
edgment of  every  instrument  of  writing  for  record  may 
be  taken  before  some  one  of  the  following  officers :  First, 
when  acknowledged  or  proved  within  the  state,  before 
some  notary  public,  district  clerk  or  judge  of  the  su- 
preme or  district  court  in  the  state,"  etc.,  and  it  was 
held  that  district  clerks  by  virtue  of  said  act  had  au- 
thority to  take  acknowledgments  of  married  women.^^ 
Again,  the  act  of    January  14,  1862,^^    provided    that 
"proof  of  every  instrument  of  writing  for  record  shall 
be  taken  by  some  one  of  the  following  officers,"  naming 
county  clerks  and  others,  and  it  was  held  that  they 
were  auti'iorized  thereby  to  take  acknowledgments  of 
married  \Aomen.^^     These  latter  acts  were  passed  at  leg- 
islatures subsequent  to  the  acts  providing  how  acknowl- 
edgments of  married  women  shall  be  taken,  and  au- 
thorizing certain  officers  to  take  them,  and  there  was 

29  Ante,  §  620. 
:^o  Ante,  §  703. 

31  Thompson   v.   Johnson,   84   Tex.    553,    19    S.   W.    784;    Wilson    v. 
Simpson,  68  Tex.  312,  4  S.  W.  839. 

32  Ante,  §  688. 

33  Leach  v.  Dodson,  64  Tex.  189.     See  ante,  §§  627-631,  652-656. 


§§  955-957      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  392 

uo  question  of  their  applying  to  all  acknowledgments 
according  to  their  terms.  The  reason  for  questioning 
the  application  of  the  act  of  February  5,  1841,  to  ac- 
knowledgments of  married  women  is  that  this  act  and 
the  act  of  February  3,  1841,  providing  for  acknowledg- 
ments by  married  women,  and  who  could  take  them, 
were  passed  by  the  same  legislature  and  should  be  con- 
strued together.** 

§  955.  Act  of  April  30,  1846— County  Clerks  Omitted.— 
The  act  of  April  30,  1846,^^  providing  how  acknowledg- 
ments of  married  women  must  be  taken,  authorized 
judges  of  the  supreme  and  district  courts,  and  notaries 
public  to  take  same,  and  omitted  county  clerks. ^^ 

§  956.  Idem. — This  may  revoke  the  authority  of  offi- 
cers previously  authorized  to  take  acknowledgments  of 
married  women.  The  repealing  clause  provides  that  all 
former  laws  and  parts  of  laws,  concerning  the  mode  of 
conveyance  of  property  in  which  the  wife  has  an  inter- 
est, be  and  the  same  are  hereby  repealed.^'^  It  is  not 
clear  whether  the  term  "mode  of  conveyance"  used  in 
said  repealing  clause  referred  also  to  the  authority  of 
the  officers  authorized  (and  limited  it  to  those  named  in 
said  act),  or  only  to  the  manner  in  which  they  shall  act. 
It  would  seem  the  latter.  The  same  legislature  at 
about  the  same  time  by  another  law  authorized  commis- 
sioners of  deeds  to  take  the  wife's  acknowledgments  as 
well  as  others. ^^ 

§  957.  Act  of  May  12,  1846— County  Clerks  Authorized  to 
Take  Acknowledgments.— The  act  of  May  12,  1846^^  (tak- 

34  Ante,   §  626.     For  further  authorities,  see  ante,  §S   627-631,  652- 
656. 

35  H.  D.  174;  P.  D.  1003;  2  L.  T.  1462. 

36  Ante,  §   637. 

37  Ante,  §  639. 

38  Ante,  §  729.     For  further  authorities,  see  ante,  §§  641,  647,  652, 
656,  662-665. 

39  P.  D.  5011;  H.  D.  2794;  2  L.  T.  1544. 


393  COUNTY  CLERKS.  §§  958-960 

ing  effect  July  13,  1846),  provided  that  "proof  or  ac- 
knowledgment of  every  instrument  of  writing  for  rec- 
ord shall  be  taken  by  some  one  of  the  following  officers: 
First,  when  acknowledged  or  proven  within  the  state, 
before  some  notary  public,  or  clerk  of  the  county  court 
of  any  county  in  the  state,"  etc.'*** 

§  958.  Authority  of  County  Clerks  Extended— Of  Certain 
Other  Officers  Revoked. — It  is  seen  that  the  authority  of 
county  clerks  by  this  act  permits  them  to  certify  to  in- 
struments to  be  recorded  in  other  counties  than  their 
own.  The  authority  of  all  officers  authorized  to  take 
acknowledgments  and  proof  by  previous  legislatures  is 
revoked.*^  While  there  is  no  question  of  the  authority 
of  county  clerks  under  this  act  to  take  single  acknowl- 
edgments, there  may  be  some  question  of  their  authority 
to  take  acknowledgments  of  married  women,  for  the  rea- 
son that  another  act  (April  30,  1846),  passed  by  the 
same  legislature  a  few  days  prior,  providing  how  ac- 
knowledgments of  married  women  must  be  taken,  au- 
thorized other  officers  to  take  them,  and  omitted  county 
clerks.'*^ 

§  959.  Act  of  May  13,  1846— Deputies.— The  act  of  May 
13^  1846  (taking  effect  July  13,  1846),*^  provided  that 
county  clerks  shall  under  their  hand  and  seal  appoint 
a  deputy  for  whose  acts  the  clerk  shall  be  responsible. 
He  shall  also  procure  a  seal,  etc. 


44 


§  960.  Idem.— Deputy  county  clerks  were  authorized 
or  provided  for  by  the  acts  of  December  31,  1837,  Feb- 
ruary 5,  1840,  and  May  13,  1846.  And  such  deputies 
by  virtue  of  their  appointment  would  be  authorized  to 
take  acknowledgments  under  the  same  conditions  as 


40  Ante,  §  644. 

41  Ante,  §  637. 

4  2  See  ante,  §§  652-656. 

43  2  L.  T.  1640. 

44  See  "Seal,"  ante,  §§  511,  658. 


§§961,962     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  394 

their  principals.^®  This  is  an  act  organizing  county 
courts,  and  appears  to  contemplate  the  whole  subject 
matter  of  the  organization  of  such  courts,  and  the  offi- 
cers of  same,"*^  and  to  that  extent  is  a  substitute  for 
and  repeals  the  act  of  December  20,  1836,  but  probably 
does  not  affect  the  jurisdiction  of  same.'*''  No  provision 
is  made  in  this  act  for  pro  tem  clerks,  and  such  officers 
were  no  doubt  thereby  abolished  until  the  act  of  March 
16,  1848,  took  effect. 

§  961.  Act  of  March  16,  1848— Deputies.— The  act  of 
March  16,  1848  (taking  effect  April  29,  1848),**  re- 
quired clerks  of  county  courts  to  have  deputies  at 
county  seats  in  all  cases  where  clerks  do  not  reside 
there.  *^ 

§  962.  Act  of  March  16,  1848— Deputies  and  Pro  Tem 
Clerks.— The  act  of  March  16,  1S48  (taking  effect  Au- 
gust 7,  1848),®**  again  authorizes  county  clerks  to  ap- 
point deputies  under  their  hands  and  seals,®*  and  in  case 
of  vacancy  in  office  or  the  absence  of  the  clerk  and  his 
deputies,  the  chief  justice  may  by  an  order  entered  on  the 
minutes  Of  the  court  either  in  vacation  or  term  time  ap- 
point a  clerk  pro  tem  for  not  more  than  thirty  days.®^ 
It  also  provides  that  in  case  of  vacation  in  the  office  of 
chief  justice  two  county  commissioners  shall  have  power 
to  hold  all  such  courts  as  the  chief  justice  can  hold,  and 
to  do  and  perform  all  such  official  acts  as  he  can  do  and 
perform.®^ 

45  Eose  V.  Newman,  26  Tex.  135,  80  Am.  Dec.  646;  Chicago  etc.  Ry. 
Co.  V.  Titterington,  84  Tex.  219,  31  Am.  St.  Eep.  39,  19  S.  W.  472; 
ante,  §  587. 

4G  Ante,   §§   657-661. 

47  Ante,    §§    662-665. 

48  3  L.  T.  128. 

49  Ante,  §  668. 

50  3  L.  T.  117;   H.  D.  322. 

51  Ante,  §  670. 

52  Ante,  §  671. 

53  Xnte,   §§   672,  960. 


395  COUNTY  CLEEKS.  §§  963-967 

§  963.  Act  of  December  18,  1849— County  Clerks  Author- 
ized to  Take  Acknowledgments  of  Married  "Women. — The  act 
of  December  18,  1849  (taking  effect  from  passage),^* 
authorized  county  clerks  to  take  the  separate  acknowl- 
edgments of  deeds  by  married  women  under  same  rules 
prescribed  by  judges  of  the  supreme  or  district  courts 
or  notaries  public  in  the  act  of  April  30,  1846,  which 
act  provided  that  judges  of  the  district  and  supreme 
courts  and  notaries  public  may  take  the  acknowledg- 
ments of  husband  and  wife  to  deeds  of  her  separate 
property,  homestead,  and  other  exempt  property  after 
private  examination  of  the  wife,  etc.^^ 

§  964.  Act  of  November  24,  1851— Validates.— The  act 
of  November  24,  1851,^^  validated  official  acts  of  offi- 
cers of  the  county  court  of  Galveston  county,  who  use 
two  irregular  seals.^'' 

§  965.  Act  of  February  9,  1856— Deputy  County  Clerks 
Authorized  to  Take  Acknowledgments.— The  act  of  Febru- 
ary 9,  1856  (taking  effect  ^from  passage),^^  authorized 
regularly  appointed  deputy  clerks  to  take  acknowledg- 
ments of  all  persons,  and  validates  all  such  acts  herch 
tofore  done  by  such  deputies. ^^ 

§  966.  Act  of  August  19,  1856— Validates.— The  act  of 
August  19,  1856,"^  validates  the  acts  of  Levi  S.  Me- 
Micken  as  deputy  county  clerk  of  Polk  county  under  W. 
H.  Dukes  as  principal. 

§  967.  Act  of  February  9,  1860— Validates.— The  act  of 
February  9,  1860  (taking  effect  from  passage),^*  pro- 

54  3  L.  T.  U9;  II.  D.  178. 

55  Ante,  §  681. 

56  3  L.  T.  881. 

57  See  post,  §  1027. 

58  4  L.  T.  262. 

59  Ante,   §   683. 
CO  4  L.  T.  459. 

61  4  L.  T.  1437;  P.  D.  1520;  Rev.  Stats.  1879,  art.  43.56. 


§§  968-970      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  396 

Tided  that  every  deed,  etc.,  jterniitted  by  law  to  be  reg- 
istered which  shall  have  been  registered  prior  to  the 
ninth  day  of  February,  1860,  shall  be  held  to  be  law- 
fully registered,  provided  the  same  shall  have  been  ac- 
knowledged before  any  chief  or  associate  justice  or  clerk 
of  the  county  court,  or  notary  public  within  any  county 
within  the  late  republic  or  now  state  of  Texas,  or  judge 
of  the  department  of  the  Brazos,  or  primary  judges  or 
judge  of  the  first  instance  in  1836,  or  proved  before 
any  such  officer  by  one  or  more  of  the  subscribing  wit- 
nesses, thereto  certified  by  such  officer.  This  validates 
only  when  vested  rights  would  not  be  thereby  affected. ^^ 

§  968.  Act  of  April  6,  1861— County  Clerks  Again  Au- 
thorized to  Take  Acknowledgments. — The  act  of  April  6, 
1861  (taking  effect  from  passage),^  again  authorized 
county  clerks  to  take  acknowledgments  and  proof  of 
conveyances;  it  providing  that  every  deed  when  within 
the  state  shall  be  acknowledged  before  some  notary 
public,  clerk  of  the  county  court  or  judge  of  a  court  of 
record  having  a  seal.^^ 

§  969.  Act  of  January  14,  1862— County  Clerks  and  Their 
Deputies  Authorized  to  Take  Acknowledgments. — The  act  of 
January  14,  1862  (taking  effect  from  passage ),*^^  in  ad- 
dition to  the  above-mentioned  officers  authorized  dep- 
uty county  clerks  to  authenticate  instruments  for  rec- 
ord, and  validated  all  acts  of  deputy  county  clerks 
taken  since  April  6,  1861.^® 

§  970.  Act  of  November  13,  1866— County  Clerks  Again 
Authorized. — The  act  of  November  13,  1866,  again  pro- 
vided that  proof  or  acknowledgment  of  every  instru- 
ment of  w^riting  for  record  shall  be  taken  within  the 

62  Post,  §§  1029-1037. 

63  5  L.  T.  373. 

64  Ante,  §  686. 

65  5  L.  T.  501;  P.  D.  5024. 

66  Ante,  §  C88. 


397  COUNTY   CLERKS.  §§  971-973 

state,  by  a  notary  public  or  clerk  of  the  county  court 
of  any  county  in  the  state. '^'^ 

§  971.  Constitution  of  1869— District  Clerks  Ex-Officio 
County  Clerks. — The  constitution  of  1869,  ratified  on 
first  Monday  in  July,  1869,*^^  provided  that  a  clerk  of 
the  district  court  for  each  county  shall  be  elected  by 
the  qualified  electors  who  shall  be  ex-officio  county 
clerks,  and  authorized  them  to  perform  all  duties  here- 
tofore performed  by  county  clerks,  and  gave  them  cus- 
tody of  all  the  papers,  books,  etc.,  of  district  and  county 
courts.  The  separate  office  of  county  clerks  is  abol- 
ished by  this  provision.**^ 

§  972.  Act  of  August  8,  1870— District  Clerks,  Their  Depu- 
ties and  Notaries  Authorized  to  Take  Acknowledgments. — The 
act  of  August  8,  1870  (taking  effect  from  passage),'** 
authorized  district  clerks,  their  deputies  and  notaries 
to  take  acknowledgments  or  proof  of  deeds,  etc.,  and 
the  certificate  of  any  such  officer  that  such  instrument 
has  been  so  acknowledged  shall  entitle  the  same  to 
registration.'''^ 

§  973.  Act  of  May  6,  1871— District  Clerks  Again  Author- 
ized.—The  act  of  May  6,  1871''^  (taking  effect  from  pas- 
sage, amending  section  11  of  the  act  of  May  12,  1846), 
provided  that  proof  or  acknowledgment  of  every  con- 
veyance may  be  made  within  the  state  before  some  no- 
tary public,  district  clerk  or  judge  of  the  supreme  court, 
and  the  certificate  of  such  acknowledgment  or  proof 
shall  be  attested  under  the  official  seal  of  the  officer  tak- 
ing the  same.'^^ 

67  Ante,  §§  691,  692. 

68  §  9,  7  L.  T.  412. 
60  Ante,  §  693. 

70  6  Ji.  T.  223. 

71  Ante,  §  695. 

72  6  L.  T.  976. 

7.3  Ante,  §§  703,  692. 


§§  974-978      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  398 

§  974.  Act  of  May  25,  1871— Validates.— The  act  of  May 
25,  1871  (taking  effect  from  passage)/^  validated  the 
acts  of  I.  H.  Stein  while  acting  district  clerk  of  Ham- 
ilton county. 

§  975.  Constitution  of  1875— County  and  District  Clerks 
Authorized  When.— The  constitution  of  1875,  ratified 
February  15,  18767^  provided  for  a  county  clerk  for 
each  county,  who  shall  be  the  recorder,  and  whose  du- 
ties shall  be  fixed  by  the  legislature,  and  a  vacancy  in 
his  oflace  shall  be  filled  by  the  commissioners'  court 
until  the  next  general  election,  provided  that  in  any 
counties  having  a  population  of  less  than  eight  thou- 
sand persons  there  may  be  an  election  of  a  single  clerk, 
who  shall  perform  the  duties  of  district  and  county 
clerk. 


§  976.  Act  of  May  25,  1876— Deputy  County  Clerks  Au- 
thorized.—The  act  of  May  25,  1876,''^  authorized  county 
clerks  of  the  several  counties  to  appoint  deputies,  and 
said  county  clerks  and  their  deputies  were  authorized 
to  take  both  single  and  joint  acknowledgments  and 
proof  of  all  instruments  of  writing  for  record,  and  all 
laws  in  conflict  therewith  were  repealed. 


77 


§  977.  Act  of  June  16,  1876— Validates.— The  act  of 
June  16,  1876,''*  validates  certain  acts  of  county  clerks, 
but  it  does  not  seem  to  apply  to  acknowledgments.''^ 

§  978.  Act  of  March  13,  1879— District  and  County  Clerks 
One  Person— Validates.— The  act  of  March  13,  1879,*^ 
provided  that  in  counties  of  less  than  eight  thousand 
inhabitants,  one  person  may  hold  office  of  clerk  of  the 

74  6  L.  T.  1034. 

75  §  20,  8  L.  T.  804. 

76  8  L.  T.  846. 

77  Ante,  §§  710,  711. 

78  8  L.  T.  860. 

79  See  post,  I  1048. 
8b  8  L.  T.  1334. 


399  COUNTY  CLEEKS.  §§  979,980 

district  and  county  courts.  The  number  of  inhabitants 
to  be  determined  on  the  basis  of  five  for  every  vote  cast 
for  governor  at  the  last  general  election.  It  validated 
previous  acts  by  such  persons  holding  both  offices. 

§  979.  Revised  Statutes  of  1879  and  1895— County  and 
District  Clerks  Again  Authorized. — The  Eevised  Statutes 
of  1879  and  1895,^^  amending  the  act  of  May  6,  1871, 
provides  that  acknowledgments  or  proof  of  an  instru- 
ment of  writing  for  record  may  be  made  within  this 
state  by  either  a  clerk  of  the  district  court,  a  judge  or 
a  clerk  of  the  county  court  or  a  notary  public.*^ 

§  980.  Remained  in  Force. — The  final  title  of  Revised 
Statutes  of  1879,  section  4,  repeals  all  general  laws  not 
incorporated  in  said  statutes.^^  This  act  was  not 
changed  by  the  Revised  Statutes  of  1895,  and  is  still  in 
force. 

81  Arts.  4305  and  4613. 

82  Ante,  §  716. 

83  Talbert  v.  Bull,  70  Tex.  679,  8  S.  W.  530. 


§§  981,  982     WHO  MAY  TAKE  ACKNOWLEDGMENTS.  400 


CHAPTER  XXVII. 

WHO    MAY    TAKE    ACKNOWLEDGMENTS    AND    PROOF— DIS- 
TRICT  CLERKS   AND    THEIR   DEPUTIES. 

§  981.     Summary    of    statutes. 

§  982.     Constitution  of  1869 — District   clerks  ex-officio  county   clerks. 

§  983.  Act  of  August  8,  1870— District  clerks  and  deputies  author- 
ized. 

§  984.     Act  of  May  6,  1871 — District  clerks  and  deputies  authorized. 

§  985.     Act  of  May  25,  1871— Validates. 

§  986.     Act  of  April  14,   1874— Validates. 

§  987.  Act  of  April  20,  1874— District  clerks  may  qualify  as  justices 
of  .peace. 

§  988.  Constitution  of  1875  — District  and  county  clerkships  held  by- 
one  person. 

§   989.     Act  of  July  28,  1876— Validates. 

§  990.  Act  of  March  13,  1879 — District  and  county  clerkships  held 
by  one  person — Validates. 

§  991.  Revised  Statutes  of  1879  and  1895— District  clerks  authorized 
— Deputies  omitted   but   authorized. 

§  981.  Summary  of  Statutes. — Clerks  of  the  district 
courts  and  their  deputies  were  at  all  times  after  the 
ratification  of  the  constitution  of  1869,  on  the  first 
Monday  in  July  and  their  election  thereunder,  author- 
ized to  take  acknowledgments,  but  were  not  so  author- 
ized before  that  time. 

§  982.  Constitution  of  1869— District  Clerks  Ex-Officio 
County  Clerks. — Section  9  of  the  constitution  of  Septem- 
ber, 1869,^  provided  that  clerks  of  the  district  court 
shall  be  the  recorders  for  the  counties  of  all  deeds,  etc., 
required  by  law  to  be  recorded.  And  "also  ex-offlcio 
clerks  of  the  county  courts,  and  by  virtue  of  their  oflflces 
shall  have  control  of  all  records,  etc.,  of  the  district 
and  county  courts,  and  shall  generally  perform  the  du- 
ties heretofore  required  of  county  and  district  clerks." 
As  district  clerks  had  previously  been  authorized  to 

■  1   7  L.  T.  412. 


401  DISTEICT    CLEEKS.  §§983-985 

appoint  deputies,  acknowledgments  taken  by  their  depu- 
ties would  have  the  same  force  as  if  taken  by  the  clerk 
himself.^ 


§  983.  Act  of  August  8,  1870— District  Clerks  and  Depu- 
ties Authorized.— At  the  following  session  of  the  legis- 
lature August  8,  1870  (taking  effect  from  passage),^  dis- 
trict clerks  and  their  deputies  were  authorized  "to  take 
acknowledgments  and  proof  of  deeds  and  other  written 
instruments  required  by  law  to  be  recorded  in  this  state, 
and  the  certificate  of  any  such  officer  over  his  official 
signature  and  seal  of  office  that  such  instruments  had 
been  so  acknowledged  shall  entitle  the  same  to  regis- 
tration," and  all  laws  in  conflict  therewith  were  re- 
pealed. Under  this  act  district  clerks  and  their  depu- 
ties were  authorized  to  take  acknowledgments  of  mar- 
ried women.^ 

^  984.  Act  of  May  6,  1871— District  Clerks  and  Deputies 
Authorized.— The  act  of  May  6,  1871  (taking  effect  from 
passage),^  provided  that  notaries,  district  clerks,  judges 
of  supreme  or  district  courts  may  take  acknowledg- 
ments and  proof  of  instruments  for  record.  This  omits 
deputy  clerks,  but  as  district  clerks  were  authorized  to 
appoint  deputies,  this  would  imply  their  authority  to 
take  acknowledgments  and  proof  of  instruments  for 
record.  It  is  also  held  that  this  act  does  not  repeal 
the  act  of  August  8,  1870,  expressly  authorizing  depu- 
ties to  take  acknowledgments.** 


§  985.  Act  of  May  25,  1871— Validates.— The  act  of  May 
25,  1871  (taking  effect  from  passage),''  validates  the 
acts  of  I.  H.  Steen,  district  clerk  of  Hamilton  county. 

2  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 

3  6  L.  T.  223. 

4  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784. 

5  6  L.  T.  979. 

6  Herndon  v.  Reed,  82  Tex.  651,  18  S.  W.  665. 

7  6  L.  T.  1034. 

26 


§§  9S6-989      WHO  MAY  TAKE  ACKNOWLEDGMENTS.  402 

§  986.  Act  of  April  14,  1874— Validates.— The  act  of 
April  14,  1874  (takino-  effect  from  passage),*  validates 
the  otlicial  acts  of  clerks  of  the  district  court  acting  as 
justices  of  the  peace  by  virtue  of  an  election  held  on 
December  2,  1873. 

§  987.  Act  of  April  20,  1874 — District  Clerks  may  aualify 
as  Justices  of  Peace.— The  act  of  April  20,  1874,®  author- 
ized district  clerks  elected  as  justices  of  the  peace  to 
qualify  as  such. 

§  988.  Constitution  of  1875— District  and  County  Clerk- 
ships Held  by  One  Person. — The  constitution  of  1875  rati- 
fied February  15,  1876,*^  provided  for  a  county  clerk  for 
each  county  in  the  state,  who  shall  be  a  recorder  of 
deeds,  etc.,  and  for  such  other  duties  as  may  be  fixed 
by  the  legislature,  provided  that  in  counties  having  less 
than  eight  thousand  persons  there  may  be  an  election 
of  a  single  clerk  who  shall  perform  the  duties  of  district 
and  county  clerks. 

§  989.  Act  of  July  28,  1876— Validates.— The  act  of 
July  28,  1876  (taking  effect  November  19,  1876),**  vali- 
dates the  certificates  of  acknowledgments  of  deeds  of 
married  women  taken  before  any  authorized  officer 
whenever  such  certificate  of  acknowledgment  is  invalid 
because  the  same  is  wanting  in  some  word  required  by 
law,  provided  that  such  certificate  shall  show  on  its 
face  that  the  married  woman  was  examined  by  the 
officer  taking  the  acknowledgment,  separate  and  apart 
from  her  husband,  and  having  the  same  fully  explained 
to  her  she  declares  she  had  willingly  signed  same,  and 
that  she  did  not  wish  to  retract  it,  or  words  to  that 
effect.  *2 

8  8  L.  T.  94. 

9  8  L.  T.  111. 

10  8  L.  T.  804. 

11  8  L.  T.  897. 

12  McDaniel  v.  Harold,  1  U.  C.  521. 


403  DISTEICT  CLEEKS.  §§  990,  991 

§  990.  Act  of  March  13,  1879— District  and  County  Clerk- 
ships Held  by  One  Person — Validates. — The  act  of  March  13, 
1879*-^  (taking  effect  July  23,  1879),  provided  that  in 
any  county  having  a  population  of  less  than  eight  thou- 
sand inhabitants  one  person  may  hold  office  of  district 
and  county  clerk,  the  population  to  be  determined  on 
a  basis  of  five  inhabitants  for  every  vote  cast  at  the  last 
general  election  for  governor.  And  it  validated  acts 
of  such  persons  holding  both  offices,  previously  made. 

§  991.  Revised  Statutes  of  1879  and  1895— District  Clerks 
Authorized — Deputies  Omitted  but  Authorized. — The  Re- 
vised Statutes  of  1879  and  1895^^  now  in  force,  again 
authorized  district  clerks  to  take  acknowledgments  and 
proof  of  instruments  but  omitted  deputies.  While  all 
general  statutes  not  incorporated  in  the  Revised  Stat- 
utes are  repealed  by  Final  Title,  section  4,  deputies  of 
district  clerks,  it  would  seem,  would  still  be  authorized 
to  take  acknowledgments  under  the  same  condition  as 
their  principals,  the  law  still  authorizing  the  appoint- 
ment of  deputies.*^ 

13  8  L.  T.  1334. 

14  Arts.  4305  and  4613. 

15  Thompson  v.  Johnson,  84  Tex.  548,  19  S.  W.  784;   Chicago  etc. 
Ey.  Co.  V.  Titterington,  84  Tex.  219,  31  Am.  St.  Eep.  39,  19  S.  W.  472. 


CUEING  DEFECTIVE  ACKNOWLEDGMENTS.  404 


CHAPTER  XXVIII. 

CURING     DEFECTIVE     ACKNOWLEDGMENTS     AND     CERTIFI- 
CATES. 

A.     GENERALLY. 
§     992.     By   oflficer — Officer   may  amend  certificate   when. 
§     993.  In  some  other  states  held  officer  may  correct  certificate. 

§     994.  The  reverse  held  in  most  other  states. 

§     995.     By  grantors — May  be  corrected  by  grantors. 
§     996.  Exception   to   above   rule,   where   husband   fails  to   join 

until  after  her  death. 
§     997.  Wife,  may  acknowledge  after  death  of  husband. 

§     998.     By  action  at  law — Prior  to  Revised  Statutes  of  1879. 
§     999.  -After  Revised  Statutes  of  1879  acknowledgment  may  be 

cured. 
§   1000.  Certificate   only  can  be  remedied,  not  acknowledgments 

when. 
§  1001.  Acknowledgment    defective   on    account   of    interest   of 

officer. 
§   1002.  Want   of  acknowledgment  by   single  person   cured. 

§  1003.  Above   acts   constitutional. 

§  1004.  Barred  by   limitation. 

S  1005.  Proved  by  circumstantial  evidence. 

§  1006.     By  statute — Constitutionality  of. 
§  1007.  Officer  interested  party. 

§  ia08.  In  other  states. 

§  ia09.  Idem. 

§  1010.  Idem. 

§  1011.  "What  acts  constitutional. 

§  1012.  What    acts    unconstitutional. 

§  1013.  Idem. 

§  1014.     Change  of  law  will  not  effect  validity  of  acknowledgments. 
§   1015.     Validating    statutes — How    construed. 

B.     STATUTORY  ENACTMENTS— GENERAL.l 

§  1016.  Validating  statutes  not  repealed. 

§  1017.  Act  of  January  19,  1839— Copies  admitted  to  record  when. 

§  1018.  Act    of   February   5,    1841— Registration    of   instruments   ac- 
knowledged before  certain  officers  validated. 
§  1019.  Idem — How  construed. 

§   1020.  Idem. 

§  1021.  Idem. 

1  special  acts,  see  §§   1060-1068. 


405  CURING  DEFECTIVE  ACKNOWLEDGMENTS. 

§  1022.  Act  of  April  29,  1846— Eegistration  of  wife's  property- 
validated. 

§  1023.  Act  of  May  2,  1846— Acts  of  chief  justices  of  county 
courts  validated. 

§  1024.  Act  of  May  12,  1846  — Certain  instruments  may  be  recorded. 
§  1025.  Act  of  May  13,  1846— Certain  copies  admissible  in  evidence 
when. 

§  1026.  Idem. 

§  1027.  Act  of  November  24,  1851— Seals  used  in  Galveston  county 
validated. 

§  1028.  Act  of  February  9,  1856 — Acknowledgments  of  deputy 
county    clerks    validated. 

§  1029.  Act  of  February  9,  1860 — Eegistration  of  instruments  ac- 
knowledged before  certain  officers  validated. 

§  1030.  When   such  instruments  recorded,  copies  thereof  admis- 

sible in  evidence. 

§  1031.  Acknowledgment   before  unauthorized  notary  validated. 

§  1032.  Does   it   validate   where   the   acknowledgment   or   certifi- 

cate is  defective,  or  only  the  want  of  authority  in  the 
officer? 

§  1033.  Idem. 

§  1034.  Ideni. 

§  1035.  Idem. 

§  1036.  Idem. 

§  1037.  Idem. 

§  1038.  Act  of  January  14,  1862 — Acknowledgments  of  county  clerks 
validated. 

I  1039.  Act  of  August  13,  1870 — Acknowledgments  before  county 
judges  validated. 

§  1040.  Act  of  April  14,  1874— Acknowledgments  of  district  clerks 
as  justices  of  peace    validated. 

§  1041.  Act  of  April  27,  1874— Acknowledgments  taken  without  the 
state  and  within  United  States  valid,  if  taken  before  an 
officer  now  authorized. 

§  1042.  Cured   want   of   authority  in   notary. 

§  1043.  In   case    of   married    woman's    acknowledgment. 

§  1044.  Above  act  restricted  to  United  States. 

§  1045.  Act  of  May  2,  1874— Acknowledgments  of  notaries  vali- 
dated when. 

§  1046.  Idem. 

§  1047.  Constitution  of  1875 — Certain  titles  shall  not  be  recorded, 
etc. 

§  1048.  Act  of  June  16,  1876 — Previous  acts  by  county  judges  which 
would  be  authorized  by  this  act,  validated. 

§  1049.  Act  of  July  28,  1876— Certificates  of  married  women's  ac- 
knowledgments validated. 

§  1050.  Note. 


§  992  CUEING  DEFECTIVE  ACKNOWLEDGMENTS.  406 

§  1051.  Act  of  March  13,  1879 — AckiiowlcdgmeEts  by  persons  hold- 
ing both  offices  of  district   and  county  clerks  validated. 

§  1052.  Act  of  April  18,  1879— Acknowledgments  of  notaries  using 
defective   seals,   validated. 

§  1053.  Eevised  Statutes  of  1879  and  1S95— Legality  of  acknowl- 
edgment and  proof  depends  on  law  in  force  at  time  same  is 
made. 

§   1054.  Acknowledgment   cured  by  action   at  law. 

§  1055.  Idem. 

§  1056.  Barred  by  limitation  when. 

§  1057.  Eevised  Statutes  of  1879  and  1895 — Validates  want  of  au- 
thority in  certain  officers. 

§  1058.     Act  of  March  18,  1881 — Validates  defective  seal. 

§  1059.  Act  of  April  5,  1889 — Acknowledgments  by  notaries  using 
defective   seals   validated. 

§  1059a.  Act  of  April  15,  1905— Attempts  to  validate  want  of  corpo- 
rate seal  in  conveyances  by  attorney  in  fact. 

C.     STATUTORY   ENACTMENTS— SPECIAL. 

§   1060.     Act   of    December   24,    1840 — Validates  the    acts   of   Samuel 

Todd. 
§  1061.     Act  of  August. 19,  1856— Validates  the  official  acts  of  Levy 

S.   McMicken. 
§   1062.     Act  of  August  30,  1856 — Validates  the  notarial  acts  of  David 

P.  Fearris. 
§   1063.     Act  of  May  18,  1871— Validates  the  official  acts  of  Silas  Mc- 

Crary  and  Jerry  Washington. 
§   1064.     Act    of   May   25,   1871— Validates   the    official   acts   of   I.   H. 

Steen  as  district  clerk. 
§  1065.     Act   of   May   25,   1871— Validates   the   official   acts   of   I.   H, 

Steen  as  justice  of  the  peace. 
§  1066.     Act  of  May  31^  1871 — ^Validates  the  official  acts  of  I.  A.  Lee. 
§   1067.     Act   of  May  13,   1875 — Validates  the  notarial  acts  of  C.  L. 

Thurmond. 
§  1068.     Act   of   April   1,   1887— Validates   the   notarial   acts   of   Wm. 

Veal. 
For   defective   authentication   prior   to   1836,   see   ante,    §    3. 

A.     GENEEALLY. 

§  992.  By  Officer — Officer  may  Amend  Certificate  When. — 
The  question  as  to  whether  or  not  an  officer  who  cor- 
rectly takes  an  acknowledgment,  but  by  mistake  or  ac- 
cident fails  to  make  a  proper  certificate  of  it,  may  at 
any  time  amend  his  certificate  so  as  to  make  it  state 


407  CUKINa  DEFECTIVE  ACKNOWLEDGMENTS.  §  992 

the  facts  as  they  really  were,  seems  to  have  been  settled 
in  this  state,  while  against  the  weight  of  authority,  in 
accordance  with  reason;  how  permanently,  remains  to 
be  seen.  It  was  intimated  by  our  supreme  court  that 
if  the  officer  taking  the  acknowledgment  of  a  married 
woman  is  still  in  ofiice,  he  may  amend  his  certificate  by 
attaching  his  seal,  provided  she  had  not  in  the  mean- 
time withdrawn  her  acknowledgTaent,  but  under  no 
other  circumstances.^  In  a  later  case  by  the  court  of 
civil  appeals,  where  a  notary  took  a  married  woman's 
acknowledgment  and  made  a  defective  certificate  of 
same  on  March  1,  1873,  and  afterward  by  another  cer- 
tificate in  proper  form,  dated  May  29,  1874,  reciting 
the  prior  acknowledgment  made  March,  1873,  and  that 
the  omission  in  the  former  certificate  was  an  oversight 
on  tlie  part  of  the  notary,  it  was  held  that  the  notary 
had  no  authority  to  correct  the  defective  certificate  after 
the  deed  had  passed  out  of  his  hands  and  been  recorded. 
The  court  saying  that  "the  overwhelming  weight  of  au- 
thority is  to  the  effect  that  when  an  officer  has  taken 
an  acknowledgment  of  a  married  woman,  and  made  a 
certificate  on  the  deed,  and  the  latter  has  passed  from 
his  custody,  he  has  no  further  jurisdiction  in  the  prem- 
ises, and  cannot,  without  a  re-examination,  or  consent 
of  the  parties,  indorse  another  certificate  on  the  deed, 
or  amend  the  same  already  made."^  In  the  same  case 
before  our  supreme  court  on  error,  Judge  Gaines,  in 
his  opinion  reversing  the  case  on  other  grounds,  says 
"It  is  therefore  unnecessary  for  us  to  determine  whether 
the  amended  certificate  of  May  19,  1874,  would  have 
made  it  a  valid  conveyance  provided  she  had  been  a 
grantor  in  the  instrument.  But  in  order  to  prevent 
any  misconception  which  may  arise  from  the  opinion 
of  the  court  of  civil  appeals  upon  that  question,  we 
will  say,  that  if  the  point  were   before  us    we  are    in- 

2  McKeller  v.  Peek,  39  Tex.  388,  and  S.  C,  33  Tex.  2.^4 

3  Stone  V.  Sledge  (Tex.  Civ.  App.),  ^4  S.  W.  698    (citing  a  number 
of   cases). 


§§993,994     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.  408 

clined  to  think  that  we  should  be  constrained  to  hold 
that  the  officer  while  in  office  had  the  power  to  amend 
his  certificate.  There  has  been  no  decision  in  our  court 
upon  tlie  question,  but  the  previous  intimations  of  the 
court  are  in  favor  of  that  view.^  It  must,  however,  be 
conceded,  as  we  think,  that  the  weight  of  authority  else- 
where supports  the  opinion  of  the  court  of  civil  ap- 
peals."^ It  is  clear  that  if  he  can  amend  the  certificate 
of  a  married  woman's  acknowledoment,  he  can  amend 
other  certificates  of  acknowledgments  and  proofs. 

May  Correct  Certificate  on  Depositions  When. — It  is 
well  settled  that  an  officer  taking  a  deposition  may,  with 
the  consent  of  the  court,  amend  his  defective  certificate 
at  any  time.*^  While  it  is  proper  for  the  officer  to  correct 
his  certificate  under  the  direction  of  the  court,  it  is  not 
allowable  for  him  to  correct  same  by  sending  another 
certificate  to  be  attached.'' 

§  993.  In  Some  Other  States  Held  Officer  may  Correct  Cer- 
tificate.— It  is  held  in  a  leading  case  in  Indiana,  that  an 
officer  who  correctly  takes  an  acknowledgment  but  fails 
to  make  a  proper  certificate  of  it  may  at  any  time  amend 
his  certificate  so  as  to  make  it  state  the  facts.*  This 
is  also  held  in  the  states  of  Missouri  and  Mississippi.** 

§  994.  The  Reverse  Held  in  Most  of  the  Other  States. — 
While  tlie  above  doctrine  appears  reasonable  and  expe- 
dient, it  is  not  supported  by  the  weight  of  authorities, 
as  the  cases  referred  to  hold  that  where  an  oflScer  has 
taken  an  acknowledgment  and  made  his  certificate  he 

4  McKeller  v.  Peck,  39  Tex.  381;  S.  C,  33  Tex.  234. 

5  Stone  V.  Sledge,  87  Tex.  54,  47  Am.  St.  Eep.  65,  26  S.  W.  1068. 

6  Chapman  v.  Allen,  15  Tex.  282;  Price  v.  Horton,  4  Tex.  Civ.  App. 
526,  23  S.  W.  501;  Millikin  v.  Smoot,  71  Tex.  760,  10  Am.  St.  Rep. 
813,  12  S.  W.  59. 

7  Galveston  etc.  Ey.  Co.  v.  Matula,  79  Tex.  581,  15  S.  W.  573. 
S  Stott  v.  Harrison,  73  Ind.  20. 

9  Wannell  v.  Kem,  51  Mo.  150';  Harmon  v.  McGee,  57  Miss.  410. 


409  CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  995,  996 

cannot  afterward  amend  or  change  the  certificate  so 
as  to  correct  an  error  or  mistake  therein.*** 

§  995.  By  Grantors — May  be  Corrected  by  Grantor. — De- 
fective acknowledgments,  both  single  and  joint,  may 
be  corrected  by  the  grantor  by  reacknowledgment,  at 
any  time  thereafter,  and  in  the  absence  of  intervening 
rights  the  correction  would  relate  back  to  the  original 
acknowledgment  or  delivery,  and  no  new  delivery  is 
required.**  The  latter  case  referred  to  holding  that  the 
correction  of  a  defective  certificate,  by  reacknowledg- 
ment after  the  building  was  erected  on  the  homestead, 
would  relate  back  to  the  original  acknowledgment  of 
the  contract  made  before  the  erection  of  the  building,  so 
as  to  fix  the  mechanic's  lien  on  same. 

§  996.  Exception  to  Above  Rule  Where  Husband  Fails  to 
Join  Until  After  Her  Death. — But  where  a  wife  executed 
a  deed  and  the  husband  failed  to  join'  her  in  it  until 
after  her  death,  it  was  held  that  the  deed  was  void,  the 
husband  having  the  right  to  join  her  in  said  deed  at 
any  time  before  her  death,  but  not  afterward;  the  rea- 
son being  that  the  conveyance  not  having  devested  her 
title  during  her  lifetime,  at  her  death  it  descended  to 
her  heirs,  and  the  husband  could  no  longer  render  the 
conveyance  valid.  *^  And  where  her  deed  is  void  on  ac- 
count of  a  defective  acknowledgment,  her  reacknowl- 
edgment, in  the  absence  of  intervening  rights,  will  re- 
late back  to  the  original  delivery.*^  It  is  not  necessary 
that  the  certificate  be  made  at  the  same  time  or  by  the 

10  Wedel  v.  Herman,  59  Cal.  507;  Merrett  v.  Yates,  71  111.  636,  23 
Am.  Eep.  128;  Newman  v.  Samuels,  17  Iowa,  528;  Elwood  v.  Elock, 
13  Barb.  50;  First  Nat.  Bank  of  Harrisonburg  v.  Paul,  75  Va.  594,  40 
Am.  Rep.  740;  Elliott  v.  Peirsol,  1  Pet.  328,  7  L.  e<(.  164;  Griffith  v. 
Ventress,  11  L.  R.  A.  193,  note. 

11  Halbert  v.  Bennett  (Tex.  Civ.  App.),  26  S.  W.  913;  Starnes  v. 
Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W.  203. 

12  Halbert  v.  Bennett   (Tex.  Civ.  App.),  26  S.  W.  913. 

13  Idem;  and  Starnes  v.  Beitel,  20  Tex.  Civ.  App.  524,  50  S.  W. 
203. 


§§997,998     CURING  DEFECTIVE  ACKNOWLEDGMENTS.  410 

same  officer;  the  wife  may  acknowledge  it  years  later. 
But  query :  Must  liusl)aud  and  wife  necessarily  sign  the 
same  deed?** 


^  997.  Wife  May  Acknowledge  After  Death  of  Husband. 
In  the  case  of  Chester  v.  Breitling/^  the  court  of  civil  ap- 
peals held  that  after  the  death  of  her  husband  the  wife 
could  not  cure  her  defective  acknowledgment  by  a  subse- 
quent acknowledgment,  but  it  was  reversed  by  the  su- 
preme court.  In  this  case  the  property  was  the  wife's 
as  well  after  as  before  the  husband's  death,  it  not  hav- 
ing descended,  and  she  could  dispose  of  it  by  the  reac- 
knowledgment.  *^ 

§  998.  By  Action  at  Law — Prior  to  Adoption  of  Revised 
Statutes  of  1879. — Under  our  statutes  there  was  an  in- 
direct method  of  proving  instruments  for  record,  by  suit 
in  court  establishing  the  validity  of  the  instrument  and 
then  recording  the  judgment  in  the  records  of  deeds. 
Such  proof  and  registration  have  been  authorized  since 
the  act  of  February  5,  1840.*''  Before  this  time  regis- 
tration of  the  judgment  seems  not  to  have  been  re- 
quired, in  order  to  constitute  notice,  as  purchasers  must 
take  notice  of  titles  not  admitted  to  record.**  From 
this  time  to  the  adoption  of  our  Revised  Statutes  of 
1879,  it  seems  that  all  instruments,  except  deeds,  etc., 
of  married  women  could  be  so  established  for  record 
by  suit,  whether  acknowledged  or  witnessed,  or  not,  but 
that  a  married  woman's  deed  could  not  be  so  cured  if 
not  properly  acknowledged;  and  possibly  not,  even 
though  properly  acknowledged  if  defectively  certified, 
unless  some  equity,  or  the  doctrine  of  estoppel,  would 

14  See  Nolan  v.  Moore,  96  Tex.  341. 

15  (Tex.  Civ.  App.),  30  S.  W.  465. 

16  Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527;  and  ante,  §  563. 
See  "Estoppel,"  ante,  §  313. 

17  H.  D.  2771. 

18  Trammel  v.  Neal,  1  U.  C.  51. 


411         CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§999-1001 

aid  such  suit;  as  some  of  our  courts  have  held  that  such 
deeds  without  proper  certificates  are  void. 


19 


§  999.  After  Adoption  of  Revised  Statutes  of  1879— Ac- 
knowledgment may  be  Cured. — After  the  adoption  of  the 
Revised  Statutes  of  1879,-**  such  action  was  authorized 
to  cure,  in  addition  to  the  instruments  which  previously 
might  have  been  cured,  defective  certificates  of  valid 
acknowledgments  of  married  women.^^ 

§  1000.  Certificate  Only  can  be  Remedied,  not  Acknowledg- 
ment, When. — Action  under  Revised  Statutes  of  1895,  art- 
icle 4663  (4353),  cannot  remedy  a  defective  acknowledg- 
ment (in  case  of  married  women) ,  but  only  defective  cer- 
tificates thereof,  if  the  acknowledgment  was  in  fact  prop- 
erly taken;  it  does  not  create  a  right,  but  provides  an- 
other means  of  proof  of  an  existing  right.  And  a  mar- 
ried woman's  deed  properly  acknowledged  but  defec- 
tively certified  is  not  void,  but  may  be  corrected  by  suit. 
And  it  acts  prospectively  as  well  as  upon  a  pre-existing 

22 

cause."'* 


§  1001.  Acknowledgment  Defective  on  Account  of  Inter- 
est of  Officer. — An  acknowledgment  invalid  because  it  is 
made  before  an  officer  who  is  an  interested  party,  i.  e., 
having  stock  in  the  building  and  loan  association  which 
is  the  grantee,  cannot  be  reformed  or  corrected  by  ac- 
tion in  case  of  a  husband's  and  wife's  acknowledg- 
ment'^    And  an  acknowledgment  of  a  married  woman 

19  Looney  v.  Adamson,  48  Tex.  622;  Williams  v.  Elleiiwortli,  75 
Tex.  480,  12  S.  W.  746;  Starnes  v.  Beitel,  20  Tex.  Civ.  App.  524,  50 
S.  W.  203;  Johnson  v.  Taylor,  60  Tex.  361.  See  "Estoppel  and 
Equities,"  ante,  §  313. 

20  Articles  4351-4355. 

21  Post,  §§   1000,  1001. 

22  Johnson  v.  Taylor,  60  Tex.  361. 

2::  Bexar  B.  &  L.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  1;"54.  50  S. 
W.   1081. 


§§  1002-1006     CUEING  DEFECTIVE  ACKNOWLEDGMENTS,       412 

takeii  by  the  husband  of  the  grantee  is  void  and  cannot 
be  cured  by  action.^* 

§  1002.  Want  of  Acknowledgment  by  Single  Person 
Cured. — It  is  clear  that  under  article  4664,  a  deed  of  any 
person  except  a  married  woman,  not  acknowledged  or 
proved  at  all,  could  be  proved  for  registration  by  action. 

§  1003.  Above  Acts  Constitutional. — Actions  under 
these  statutes  do  not  affect  vested  rights,  nor  create 
deeds,  but  only  evidence  of  rights  and  deeds,  and  are 
constitutional.^"  But  correction  of  the  certificate  or 
proving  the  instrument  by  suit  would  not  validate  the 
registration  and  give  it  effect  as  notice;  the  judgment 
should  be  recorded  for  such  purpose.^® 

§  1004.  Barred  by  Limitation. — Under  the  above  ar- 
ticles action  will  be  barred  by  limitation  in  four  years 
from  the  execution  of  the  certificate.^'^ 

§  1005.  Proved  by  Circumstantial  Evidence. — It  seems 
that  though  the  right  to  cure  a  defective  certificate  is 
barred  by  limitation,  the  execution  of  the  deed  and  ac- 
knowledgment may  be  proved  by  parol  or  even  circum- 
stantial evidence.^* 

§  1006.  By  Statute — Constitutionality  of. — Statutes  vali- 
dating acknowledgments  and  certificates  of  same  are 

24  Silcock  V.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939.  See  post, 
§§   1006-1015. 

25  Johnson  v.  Taylor,  60  Tex.  361;  Leach  v.  Dodson,  64  Tex.  189; 
Davis  V.  Agnew,  67  Tex.  206,  2  S.  W.  43,  376;  Hayden  v.  Moffatt,  74 
Tex.  650,  15  Am.  St.  Eep.  866,  12  S.  W.  820;  Williams  v.  Ellingsworth, 
75  Tex.  482,  12  S.  W.  746. 

26  Idem. 

27  Norton  v.  Davis,  83  Tex.  37,  18  S.  W.  430;  Stone  v.  Sledge 
(Tex.  Civ.  App.),  24  S.  W.  697;  Starnes  v.  Beitel,  20  Tex.  Civ.  App. 
524,  50  S.  W.  202. 

28  Simpson  v.  Edens  (Tex.  Civ.  App.),  38  S.  W.  476;  Grain  v. 
Huntington,  81  Tex.  614,  17  S.  W.  243;  Daniels  v.  Creekmore  (Tex." 
Civ.  App.),  27  S.  W.  149. 


413  CURING  DEFECTIVE  ACKNOWLEDGMENTS.         §  1007 

constitutional  so  far  as  they  do  not  attempt  to  affect 
vested  rights. ^^  Consequently  statutes  validating  such 
acknowledgments,  and  certificates  of  same,  of  single  per- 
sons would  be  constitutional,  provided  the  rights  of 
third  parties  had  not  intervened.^®  And  such  statutes 
validating  the  defective  certificates  of  married  women's 
acknowledgments  would  be  constitutional,  provided  ac- 
knowledgment had  been  properly  taken  and  the  rights 
of  third  persons  had  not  intervened.^^  But  if  the  wife's 
acknowledgment  had  not  been  properly  taken,  the  title 
not  having  been  devested  from  her,  would  not  a  statute 
attempting  to  validate  her  acknowledgment,  or  the  cer- 
tificate of  same,  and  devest  her  of  her  title,  be  uncon- 
stitutional?^^ 

§  1007.  Officer  Interested  Party. — An  acknowledgment 
invalid  because  it  is  made  before  an  officer  who  is  dis- 
qualified, being  an  interested  party,  cannot  be  reformed 
or  corrected,  as  to  devest  the  title  of  the  husband  and 
wife.*^  And  an  acknowledgment  of  a  married  woman 
taken  by  the  husband  of  the  grantee  is  void  and  cannot 
be  cured  by  action.^^  In  the  case  of  Baker  v.  West- 
cott"**^  which  holds  that  the  act  of  April  27,  1874,  which 
validates  the  defects  of  acknowledgments  for  want  of 
power  in  the  notary,  is  valid.  It  will  be  noticed  that 
the  acknowledgment  was  that  of  a  single  person  and  not 
that  of  a  married  woman.  The  same  is  true  in  the  case 
of  McCelvey  v.  Cryer.^^ 

29  Johnson  v.  Taylor,  60  Tex.  361. 

30  Idem;  and  Baker  v.  Westcott,  73  Tex.  131,  11  S.  W.  157;  Mc- 
Celvey V.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691. 

31  Johnson  v.  Taylor,  60  Tex.  361. 

32  Euleman  v.  Pritchett,  56  Tex.  484;  Mellinser  v.  Houston,  68 
Tex.  37,  3  S.  W.  249.     See  post,  §  1007. 

33  Bexar  B.  &  L.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W. 
1081. 

34  Silcock  v.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939;  Bexar  B. 
&  L.  Assn.  V.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W.  1081;  2  Am.  & 
Eng.  Ency.  of  Law,  2d  ed.,  p.  586. 

35  73  Tex,  131,  11  S.  W.  157. 

36  (Tex.  Civ.  App.),  28  S.  W,  691.  See  Beaumont  Pasture  Com- 
pany V.  Preston  et  al.,  65  Tex.  448. 


§§  1008-1011     CXTEING  DEFECTIVE  ACKNOWLEDGMENTS.       414 

§  1008.  In  other  States. — Tu  other  states  it  is  generally 
held  that  validating  acts  are  constitutional,  and  that 
the  legislature  has  the  power  to  cure  defective  acknowl- 
edgments even  of  married  women.^'^ 

§  1009.  Idem. — An  act  validating  the  deed  of  a  mar- 
ried woman,  invalid  because  of  a  defective  acknowledg- 
ment, is  not  unconstitutional  as  violating  the  obligation 
of  a  contract  of  a  married  woman,  as  it  gives  the  effect 
to  her  act  and  contract  which  she  intended  to  give,  and 
which  from  mistake  or  accident  had  not  been  effected.^® 

§  1010.  Idem. — An  act  curing  a  defective  acknowl- 
edgment of  the  wife,  it  being  taken  before  that  of  the 
husband  instead  of  afterward,  and  there  being  no  proper 
explanation,   was  constitutional.^** 

§  1011.  What  Acts  Constitutional. — From  the  above 
decisions  it  would  seem  that  the  act  of  January  19,  1839, 
making  certified  copies  admissible  to  record,  is  valid. 
A  statute  may  change  the  remedy  or  evidence  but  not 
destroy  the  right.***  Also  is  the  act  of  February  5, 1841, 
validating  the  registration  of  conveyances  acknowl- 
edged or  proved  by  one  or  more  witnesses,  before  cer- 
tain officers,  though  the  law  under  which  the  acknowl- 
edgment or  proof  was  made  may  be  obscure,  constitu- 
tional except  as  to  vested  rights  and  probably  acknowl- 
edgments of  married  women.'*^  Also  are  the  other 
validating  acts  valid  in  all  cases  where  vested  rights  will 
not  be  affected. *2 

37  1  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  568.  But  see  Alabama 
Life  Ins.  Co.  v.  Boykin,  38  Ala.  510;  Grove  v.  Todd,  41  Md.  633,  20 
Am.  Eep.  76,  where  the  reverse  is  held;  Barnet  v.  Barnet,  16  Am. 
Dec.  520,  note. 

38  Watson  V.  Mercer,  33  U.  S.  (8  Pet.)  88,  8  L.  ed.  876. 

39  Barrett  v.  Barrett,  120  N.  C.  127,  26  S.  E.  891,  36  L.  E.  A.  226. 
For  a  fuller  discussion,  see  Barnet  v.  Barnet,  16  Am.  Dec.  519,  520, 
note.     And  Tate  v.  Stoolzfoos,  16  Am.  Dec.  547,  548,  note. 

40  Ante,  §  1006. 

41  Ante,  §  1007;  post,  §§  1018-1020. 

42  Ante,   §  1006. 


415       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1012-1015 

§  1012.  What  Acts  Unconstitutional. — But  may  it  not 
be  questionable  if  the  act  of  May  2,  1846,  is  constitu- 
tional in  so  far  as  it  attempts  to  validate  acknowledg- 
ments of  married  women?  It  attempts  to  validate  ac- 
knowledgments previously  taken  by  chief  justices  of 
the  county  court.  If  they  were  not  authorized  at  the 
time  the  acknowledgment  was  taken,  would  their  acts 
not  be  void?  If  so,  would  any  title  pass  from  the  wife 
and  could  the  same  be  devested  by  the  legislature?*^ 

§  1013.  Idem.— Also  would  not  the  act  of  May  12, 
1846,  be  invalid  as  to  acknowledg-ments  of  married 
women,  if  taken  by  an  officer  not  qualified  at  the  time 
the  acknowledgment  was  taken,  but  authorized  by  this 
act,  for  the  same  reason?  Or  the  act  of  Februai-y  0, 
1860,  the  act  of  August  13,  1870,  the  act  of  April  14, 
1874,  the  act  of  April  27,  1874,  the  act  of  May  2,  1874, 
the  act  of  June  16,  1876,  for  the  same  reasons?** 

§  1014.  Change  of  Law  will  not  Affect  Validity  of  Ac- 
knowledgment.— A  subsequent  statute  adopting  the  same 
form  used  in  an  acknowledgment  which  is  defective  ac- 
cording to  the  law  as  it  stood  at  the  time  the  deed  was 
recorded  will  not  cure  such  defective  certificate  or  ac- 
knowledgment.*^ 

§  1015.  Validating  Statutes,  How  Construed. — The  earlier 
cases  held  that  validating  statutes  should  be  construed 
liberally,*^  but  a  later  case  does  not  seem  to  adhere  to 
this  rule.*'^ 

43  Bexar  B.  &  L.  Assn.  v.  Heady,  21  Tex.  Civ.  App.  154,  50  S.  W. 
1081;  Silcock  v.  Baker,  25  Tex.  Civ.  App.  508,  61  S.  W.  939;  ante,  § 
1006.    • 

44  Ante,  §  1006. 

45  Texas  Land  Co.  v.  Williams,  51   Tex.  51. 

40  Butler  v.  Dunagan,  19  Tex.  565;  Beaumont  Pasture  Co.  v.  Pres- 
ton et  al.,  65  Tex.  458. 

47  McCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  691;  post,  §§ 
1019-1021. 


§§  1016-1019     CURING  DEFECTIVE  ACKNOWLEDGMENTS.       416 


B.     STATUTORY  ENACTMENTS— GENERAL. 

§  1016.  Statutory  Enactments** — Validating  Statutes  not 
Repealed. — Validating  statutes  heretofore  enacted  are 
not  repealed  by  the  general  repealing  clause  of  Revised 
Statutes  of  1895  (ISTO).^**  Consequently,  the  following 
validating  statutes  are  still  in  force  though  many  of 
them  are  not  incorporated  in  the  Revised  Statutes. 

§  1017.  Act  of  January  19,  1839^ — Copies  Admitted  to  Rec- 
ord When.— The  act  of  January  19,  1839,^**  provided  that 
copies  of  all  deeds,  etc.,  when  the  originals  remain  in 
the  public  archives  and  were  executed  in  conformity 
with  the  laws  existing  at  their  dates,  duly  certified  by 
the  proper  ofiicers,  shall  be  admitted  to  record  in  the 
county  where  such  land  lies.^^ 

§  1018.  Act  of  February  5,  1841 — Registration  of  Instru- 
ments Acknowledged  Before  Certain  Officers  Validated. — Act 
of  February  5,  1811  (taking  effect  from  passage) ,^^  pro- 
vided that  every  deed,  etc.,  which  shall  have  been  here- 
tofore registered  shall,  from  the  passage  of  this  act,  be 
held  to  have  been  duly  registered,  provided  the  same 
shall  have  been  acknowledged  by  the  grantor  or  grant- 
ors before  any  chief  justice  of  the  county  court,  or  no- 
tary public,  or  before  the  clerk  of  the  county  court  in 
whose  office  such  record  is  proposed  to  be  made;  or 
proved  before  such  officer  by  one  or  more  of  the  subscrib- 
ing witnesses  and  certified  by  such  officer ;  any  obscurity 
or  conflict  in  the  existing  laws  to  the  contrary  notwith- 
standing.^^ 

§  1019.  Idem — How  Construed. — The  earlier  cases  con- 
strue this  act  more  liberally  than  the  later.     In  Butler 

•48  For  special  acts,  see   §§   1060-1068. 

49  General  provisions,  §  7;  ante,  §  109. 

50  2  L.  T.  52. 

51  Ante,  §§   1006-1011. 

52  2  L.  T.  633. 

53  See  ante,  §  1011. 


417       CURING  DEFECTIVE  ACKNOWLEDGMENTS.     §§1020,1021 

V.  Dunagan,  19  Tex.  565,  it  is  held  that  section  20  ap- 
plies to  instruments  previously  recorded;  and  thav: 
while  section  21  in  terms  applies  to  instruments  there- 
after to  be  made  and  recorded,  it  should  be  liberally 
construed  so  as  to  include  instruments  made  and  ac- 
knowledged before  the  passage  of  said  act,  but  not  re- 
corded until  after  its  passage.  This  case  was  approved 
in  Waters  v.  Spofford,  58  Tex.  122. 

§  1020.  Idem.— But  in  a  late  case  by  the  civil  court 
of  appeals,  this  construction  is  disapproved,  the  court 
holding  that  there  is  no  provision  validating  the  ac- 
knowledgments of  instruments  made  anterior  to  the  pas- 
sage of  the  jact,  the  whole  object  and  intent  of  the.  law 
bei  iig  to  render  legal  the  registry  of  instruments  made  be- 
forv^  the  passage  of  the  act,  and  to  provide  for  the  man- 
ner of  acknowledgment  and  proof  and  proper  registra- 
tion of  instruments  executed  after  the  passage  of  the 
act.^* 

§  1021.  Idem.— A  conveyance  was  made  in  1837  and 
proven  for  record  by  a  subscribing  witness  before  the 
county  clerk  of  T.  county,  and  soon  afterward  was  re- 
corded in  G.  county  where  the  land  lay.  It  was  ob- 
jected to  when  offered  in  evidence  because  the  county 
clerk  in  T.  county  had  no  authority  to  take  the  proof 
in  1816,  the  land  being  in  a  different  county,  but  it  was 
held  that  the  healing  acts  of  February  5,  1811,  and  Feb- 
ruary 9,  1860,  legalized  the  registration.^^  It  is  also 
held  that  this  act  cured  the  registration  of  instruments 
upon  proper  proof,  but  taken  before  officers  in  the  wrong 
counties,  except  as  to  county  clerks,  and  that  the  act  of 
February  9,  1860,  cured  those  of  county  clerks.^^  This 
act  was  valid  in  so  far  as  it  does  not  affect  vested 
rights.^'' 

54  McCelvey  v.  Crycr   (Tex.  Civ.  App.),  28  S.  W.  691. 
5.-;   Crayton  v.  Hamilton,  37  Tox.  2G9. 

GO  Beaumont   Pasture    Co.   v.   Preston,   65   Tex.   456;    post,    §    1032; 
McDonald  v.  Morgan,  27^  Tex.  505;  Stramlor  v.  Coe,  15  Tex.  213. 
57   Ante,  §  1006. 
27 


§§  1022-1025     CURINCt    DEFECTIVE    ACKNOWLEDGMENTS.     418 

§  1022.  Act  of  April  29,  1846— Registration  of  Wife's 
Property  Validated.— The  act  of  April  29,  1846^^^  (takin.sj 
offoct  Jimo  22,  1846),  provided  that  all  registrations  of 
Avives'  separate  property  which  have  been  made  hereto- 
fore shall  be  deemed  good  and  valid  under  this  act;  pro- 
vided the  registrations  were  good,  in  accordance  with 
the  laAAS  then  in  force. 

§  1023.  Act  of  May  2,  1846— Acts  of  Chief  Justices  of 
County  Courts  Validated.— The  act  of  May  2,  1846  (taking 
effect  from  passage ),^^  validated  acknowledgments 
taken  by  chief  justices  of  the  various  counties  of  this 
state  who  were  elected  on  the  first  Monday  in  February, 
1846,  and  they  were  thereby  authorized  to  continue  to 
perform  their  duties. ^^ 

§  1024.  Act  of  May  12,  1846 — Certain  Instruments  may 
be  Recorded.— The  act  of  May  12,  1846,^^  provides  that 
recorders  shall  record  all  instruments  executed  previous 
to  this  act  if  executed  and  acknowledged  in  accordance 
with  this  act,  or  in  the  manner  required  at  the  time 
of  such  acknowledgment  or  proof,  "all  of  which  waitings 
shall  be  recorded  under  the  same  rules  and  penalties 
hereafter  prescribed  for  other  instruments."^^ 

§  1025.  Act  of  May  13,  1846 — Certain  Copies  Admissible 
in  Evidence  When.— The  act  of  May  13,  1846  (taking  ef- 
fect June  22,  1846),*^^  provided  that  copies  of  all  con- 
veyances and  other  instruments  of  writing,  between 
private  individuals,  which  were  filed  in  the  office  of 
any  alcalde,  or  judge  in  Texas,  previous  to  the  first 
Monday  in  February,  1837,  shall  be  admitted  in  evidence 
in  like  manner  as  the  originals  might  be,  and  shall  have 
the  same  force  and  effect  as  such  originals;  provided, 

58  2  L.  T.  1459. 

59  2  L.  T.  1471. 

60  As  to  validity,  see  ante,  §  1012. 

61  H.  D.  2789,  2  L.  T.  1543. 

62  See  ante,  §§  1012,  1013. 

63  2  L.  T.  1694. 


419      CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1026, 1027 

such  copies  shall  be  certifled  to  under  the  hand  and 
seal  of  the  officer  with  whom  such  conveyance  and  in- 
strument of  writing  are  now  deposited. 

§  1026.  Idem. — Where  a  deed  was  executed  before  a 
notary  in  1S28,  in  Matamoras,  and  filed  in  the  archives 
of  the  Austin  Colony  in  1829,  it  does  not  come  within 
the  provisions  of  this  act.*'^  A  certified  copy  of  a  sale 
before  the  alcalde  at  Austin  certified  by  the  county  clerk 
of  Austin  county  was  admissible  under  this  section.**** 
This  section  seems  to  repudiate  testimonios  in  custody 
of  parties.®'*  The  instrument  must  have  been  executed 
with  all  the  forms  necessary  to  constitute  an  authentic 
act.«^ 

§  1027.  Act  of  November  24,  1851 — Seals  Used  in  Galves' 
ton  County  Validated.— The  act  of  November  21,  1851,^ 
provided,  "that  whereas  the  officers  of  the  County  Court 
of  Galveston  County,  have  had  in  use  in  the  discharge 
of  their  official  duties,  two  Seals,  one  with  the  words, 
'Galveston  County  Court,'  around  the  margin  thereof, 
with  a  Star  of  five  points  in  the  center,  and  'Texas'  en- 
graved between  the  points  of  said  Star;  with  two  rings 
close  to  each  other,  drawn  around  said  Star,  so  as  to 
touch  the  points  thereof,  or  nearly  so,  with  another 
ring  drawn  around  said  Seal,  a  sufficient  distance  from 
the  aforesaid  two  rings,  to  admit  of  the  engraving  of  the 
aforesaid  words,  'Galveston  County  Court,'  around  the 
space  between  the  said  rings,  with  notches  around  the 
outer  edge  of  said  Seal  between  the  second  line  and 
outer  edge.  The  other  Seal  with  the  words  'Galveston 
County  Court'  around  the  margin ;  a  Star  of  five  points 
in  the  centre,  and  the  word  'Texas'  engraved  between 
the  points,  with  a  deep  ring  or  circle  drawn  around 

64   Lee  V.  Wharton,  11  Tex.  74. 
or,   Tluliort  v.  Bartlett,  9  Tex.  102. 
ftO  Titus  V.  Kimbro,  8  Tex.  221. 

67  York  V.  Gregg,  9  Tex.  85;  Andrew  v.  Marshall,  26  Tex.  216. 

68  3  L.  T.  881. 


§§  1028, 1029     CURING  DEFECTIVE  ACKNOWLEDGMENTS.      420 

said  Star  about  1/2  or  1/4  of  an  inch  from  tlie  points 
of  the  Star,  and  another  deep  ring  around  the  margin ; 
and  aforesaid  words  'Galveston  County  Court/  being 
engraved  on  the  space  between  said  rings;  with  two 
Stars  of  five  points  each,  on  a  line  therewith  and  be- 
tween the  words  'County'  and  'Court,'  the  other  be- 
tween the  words  'Court'  and  'Galveston';  therefore,  Be 
it  enacted,  that  any  of  the  official  acts  of  any  of  the 
ofiicers  of  the  aforesaid  'County  Court'  where  either  of 
the  above-described  Seals  may  have  been  used,  the  same 
are  hereby  declared  to  be  legal  and  valid  so  far  as  the 
Seal  is  concerned." 

§  1028,  Act  of  February  9,  1856 — Acknowledgments  of 
Deputy  County  Clerks  Validated. — The  act  of  February  9, 
1856,^^  made  the  acknowledgments  of  deputy  county 
clerks  as  valid  as  if  done  by  their  principals. 

§  1029.  Act  of  February  9,  1860 — Eegistration  of  Instru- 
ments Acknowledged  Before  Certain  OiScers  Validated. — ^Sec- 
tion  2  of  the  act  of  February  9,  1860  (taking  effect  from 
passage),''**  provided  that  any  grant,  deed  or  other  in- 
strument of  writing  for  the  conveyance  of  any  real 
estate  or  personal  property  of  both,  or  for  the  settlement 
thereof  in  marriage  or  trust  to  uses  or  on  conditions, 
any  or  every  other  deed  or  instrument  required  or  per- 
mitted by  law  to  be  registered  and  which  shall  have 
been  prior  to  the  ninth  day  of  February,  1860,  registered 
or  recorded,  shall  be  held  to  have  been  lawfully  regis- 
tered with  the  full  effect  and  consequences  of  existing 
laws,  provided  the  same  shall  have  been  acknowledged 
by  the  grantor  or  grantors,  before  any  chief  justice  or 
associate  justice,  or  clerk  of  the  county  court,  or  no- 
tary public  in  any  county  within  the  late  republic  and 
now  state  of  Texas,  or  judge  of  the  department  of  the 
Brazos,  or  any  primary  judge  or  judge  of  the  first  in- 
stance in  1835  or  1836,  or  proven  before  any  such  officer 

69  4  L.  T.  262. 

70  4  L.  T.  1437;  P.  D.  5021. 


421       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1030-1032 

by  one  or  more  of  the  subscribing  witnesses  thereto, 
and  certified  by  such  officer  whether  such  acknowledg- 
ments or  proof  shall  have  been  made  before  any  such  of- 
ficer of  the  county  where  such  instrument  should  have 
been  recorded  or  not. 

§  1030.  When  Such  Instruments  Recorded,  Copies  Thereof 
Admissible  in  Evidence.— Section  3''*  of  same  act  provided 
that  all  such  instruments  which  shall  have  been  ac- 
knowledged or  proven  before  any  officer  named  in  the 
preceding  article,  and  which  shall  have  been  afterward 
recorded  in  the  proper  county,  and  certified  copies 
thereof  shall  be  evidence  in  the  courts  as  fully  and  suf- 
ficient as  if  such  acknowledgments  had  been  taken  or 
proof  made  in  accordance  with  existing  laws;  but  this 
article  or  the  article  preceding  shall  not  be  construed 
so  as  to  affect  or  bind .  in  any  manner  any  person  or 
party  with  constructive  notice  of  the  existence  of  any 
deed  or  any  instrument  of  writing,  as  a  recorded  deed 
or  instrument,  except  after  the  ninth  day  of  February, 
1860,  and  in  the  future. ''^ 

§  1031.  Acknowledgment  Before  Unauthorized  Notary 
Validated. — It  is  hekl  under  this  act  that  the  registry  in 
the  proper  county  in  1851,  of  a  deed  illegally  acknowl- 
edged before  a  notary  public  in  1839,  was  validated.'^* 
And  that  the  registration  of  an  instrument  upon  proper 
proof,  but  taken  before  an  officer  in  the  wrong  county, 
was  validated.'"'* 

§  1032.  Does  It  Validate  Where  the  Acknowledgment  or 
Certificate  is  Defective  or  Only  the  Want  of  Authority  in  the 
OflBlcer? — The  question  as  to  whether  or  not  this  act  and 
the  act  of  February  5,  1841,'''^  validated  a  defective  cer- 

71  p.  D.  5022. 

72  As  to  validity,  see  ante,  §§  1012-1013. 

73  HcCelvey  v.  Cryer  (Tex.  Civ.  App.),  28  S.  W.  961. 

74  Beaumont  Pasture  Co.  v.  Preston,  65  Tex.  456;  Cray  ton  v.  Ham- 
ilton, 37   Tex.   269. 

75  Ante,  §   1019. 


§§  1033-1035     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.       422 

tifieate  of  aeknowlodoineiit  or  proof  does  not  appear  to 
be  very  clearly  settled.  It  has  been  repeatedly  held 
that  these  acts  cured  the  want  of  authority  in  certain 
officers  who  took  the  acknowledgments  and  properly 
certified  to  them.  The  provisions  of  these  statutes,  in 
effect,  are  that  the  registration  of  deeds,  etc.,  shall  be 
validated  provided  they  have  been  acknowledged  (be- 
fore certain  named  officers)  and  certified  (by  such  of- 
ficers). In  order  to  meet  the  requirements  of  these 
laws  the  instrument  must  be  acknowledged  or  proved 
and  certified  to.  Is  a  deed  "certified"  in  the  purview 
of  the  law  unless  it  is  properly  certified  ?  And  is  a  deed 
acknowledged  in  contemplation  of  law  unless  it  is  prop- 
erly acknowledged?  And  can  it  be  determined  whether 
or  not  a  deed  is  properly  acknowledged  unless  it  is  prop- 
erly certified? 

§  1033.  Idem. — In  the  case  of  Beaumont  Pasture  Co. 
V.  Preston  et  al.,  65  Tex.  456,  in  discussing  the  effect  of 
the  act  of  February  5,  1841,  and  April  9,  1860,  the  court 
says  that  "the  registration  of  instruments  upon  proper 
proofs,  but  taken  before  officers  in  the  wrong  county, 
had  been  cured,"  etc.  This  and  other  language  used  in 
the  opinion  indicating  that  the  court  was  of  the  opinion 
that  proper  proof  or  acknowledgment  was  necessary  be- 
fore the  want  of  authority  and  registration  would  be 
cured. '^^ 

§  1034.  Idem.— On  the  other  hand,  it  is  held  in 
Waters  v,  Spoftord,  58  Tex.  121,  that  a  defective  cer- 
tificate (owing  to  the  omission  of  the  county  clerk  to 
attach  his  seal)  was  validated  by  the  acts  of  February 
5,  1841,  and  April  9,  1860.  Also  approved  in  Riviere 
V.  Wilkins  (Tex.  Civ.  App.),  72  S.  W.  608. 

§  1035.  Idem. — Again,  in  the  case  of  McCelvey  v. 
Cryer  (Tex.  Civ.  App.),  28  S.  W.  691,  it  is  held  that 
the  act  of  April  9,  1860,  validated  the  registration  of 

76  And  see  Holliday  v.  Cromwell,  26  Tex.  194. 


423       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1036-1038 

the  deed  or  acknowledgment  before  a  notary  who  used 
a  private  seal,  in  February,  1839,  at  which  time  notaries 
were  not  authorized  to  take  acknowledgments.  By  this 
case  it  is  held  that  the  above  act  validated  both  the 
want  of  authority  in  the  officer  and  the  defective  cer- 
tificate, defective  because  it  lacked  the  notarial  seal.'''' 

§  1036.  Idem.— In  the  case  of  Coryell  v.  Holmes,  2 
U.  C.  674,  the  deed  was  subscribed  by  a  sole  witness, 
who  proved  the  same  for  record  before  an  officer  who 
evidently  made  a  certificate  in  proper  form.  The  court 
held  that  the  act  of  February  9,  I860,  validated  the  reg- 
istration ;  the  court  saying  that  "we  entertain  no  doubt 
that  proven  as  it  was  and  recorded  (if  it  was  imperfectly 
proven  and  recorded),  it  was  validated,  etc."''^* 

§  1037.  Idem. — It  might  be  well  to  note  that  the  seal 
is  only  evidence  of  official  authority  of  the  officer  taking 
the  acknowledgment  and  is  no  part  of  the  certificate 
proper.  It  does  not  aid  in  showing  that  the  acknowl- 
edgment was  taken  in  the  proper  manner,  and  certified 
to  in  the  proper  form,  but  only  that  the  officer  had  au- 
thority to  take  the  same.  If  the  officer  had  no  authority, 
it  seems  immaterial  whether  he  attached  his  seal  or  not 
(i.  e.,  whether  the  evidence  of  his  authority  was  attached 
or  not).'^**  And  a  statute  validating  his  want  of  author- 
ity would  certainly  validate  the  want  of  evidence  of  it. 
Consequently,  it  does  not  necessarily  follow  from  the 
fact  that  the  above  acts  validate  the  want  of  a  seal, 
that  they  would  validate  the  want  of  a  certificate  show- 
ing that  the  acknowledgment  was  taken  or  properly 
taken.  This  question  does  not  appear  to  have  been  de- 
cided in  this  state. 

§  1038.  Act  of  January  14,  1862 — Acknowledgments  of 
Deputy  Clerks  Validated.— Act  of  January  14,  1862,***  vali- 

77  See  ante,  §  484. 

78  See,  also,  Davis  v.  Pearson,  6  Tex.  Civ.  App.  593,  26  S.  W.  241; 
Greenwood  v.  I'ontaine   (Tex.  Civ.  App.),  34  S.  W.  828. 

79  Kiviere  v.  Wilkons   (Tex.  Civ.  App.),  72  S.  W.  610. 

80  P.  D.  5026. 


§§  1039-1041     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.       424 

dates  acknowledgments  and  proof  made  before  deputy 
county  clerks  since  the  act  of  April  6,  1861. 

§  1039.  Act  of  August  13,  1870— Acknowledgments  Before 
County  Judges  Validated. — Act  of  August  13,  1870  (taking 
effect  from  passage),**^  provided  that  deeds,  etc.,  that 
shall  have  been  heretofore  acknowledged  before  any 
county  judge  of  any  county  in  this  state,  or  proven  be- 
fore any  such  officer,  by  one  or  more  of  the  subscribing 
witnesses,  and  certified  by  such  officer,  shall  be  held 
to  have  been  duly  acknowledged  or  proven  with  the  full 
effects  and  consequences  of  existing  laws.  And  that 
every  such  instrument  so  acknowledged  or  proven  before 
such  county  judge,  and  which  shall  have  been  heretofore 
registered,  shall  be  held  to  have  been  duly  registered.®^ 

§  1040.  Act  of  April  14,  1874— Acknowledgments  of  Dis- 
trict Clerks  as  Justices  of  the  Peace  Validated. — The  act  of 
April  14,  1874  (taking  effect  from  passage), ^^  provided 
that  all  the  official  acts  of  clerks  of  district  courts  as 
justices  of  the  peace  by  virtue  of  an  election  held  on  the 
second  day  of  December,  1837,  heretofore  done  and  per- 
formed by  them  in  conformity  with  law  be,  and  the  same 
are  hereby,  declared  to  be  valid,  etc.*^ 

§  1041.  Act  of  April  27,  1874 — ^Acknowledgments  Taken 
Without  the  State  and  Within  the  United  States  Valid,  if  Taken 
Before  an  Officer  Nov/  Authorized. — The  act  of  April  27, 
1874  (taking  effect  from  passage),^^  provided  that  all 
instruments  for  record  that  shall  have  been  heretofore 
acknowledged  or  proven  in  the  manner  prescribed  by 
law,  without  the  state  and  within  the  United  States  and 
their  territories,  before  any  one  of  the  officers  in  such 
cases  now  authorized  by  law  to  take  such  acknowledg- 

81  6  L.  T.  251. 

82  Ante,  §  701.     As  to  validity,  see  ante,  §§  1012,  1013. 

83  8  L.  T.  94. 

84  As  to  validity,  see  ante    §§  1012,  1013. 

85  8  L.  T.  154. 


425       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1042-1045 

ments  or  proof,  and  which  shall  have  been  duly  cer- 
tified by  such  officer,  shall  be  held  to  have  been  duly 
acknowledged  or  proven  with  the  full  effects  and  con- 
sequences of  existing  laws;  and  any  such  instrument 
which  shall  have  been  so  acknowledged  or  proven  be- 
fore either  of  such  officers,  and  which  shall  have  been 
heretofore  registered,  shall  be  held  to  be  duly  registered, 
but  this  act  shall  not  be  so  construed  as  to  give  it  any 
right  acquired  i^rior  to  its  passage. 

§  1042.  Cured  Want  of  Authority  in  Notary.— It  is  held 
that  the  validity  of  this  act  cannot  be  questioned,  and 
that  it  cures  the  original  defect  of  the  want  of  power 
in  the  notary  who  took  the  acknowledgment.  The  no- 
tary in  this  case  resided  in  the  state  of  Ohio  and  took 
the  acknowledgment  in  1841,  at  which  time  he  was  not 
authorized  by  the  laws  of  Texas.*^ 

§  1043.  In  Case  of  Married  Women's  Acknowledgments. — 
In  the  above  cases  the  acknowledgments  were  not  of  mar- 
ried women  and  there  was  no  question  of  vested  rights 
involved.  In  the  case  of  Ruhlman  v.  Pritchard,  56  Tex. 
by  its  provisions  restricts  its  operation  to  acknowledg- 
484,  this  question  was  left  undecided  where  a  wife's  ac- 
knowledgment was  involved.  And  on  reason  it  seems 
that  as  a  married  woman's  title  would  not  pass  without 
a  proper  acknowledgment,  the  act  in  attempting  to  de- 
vest her  of  her  title  would  be  invalid  as  to  her.*'' 

§  1044.  Above  Act  Restricted  to  United  States. — This  act 
ments  within  the  United  States.®* 

§  1045.  Act  of  May  2, 1874— Acknowledgments  of  Notaries 
Validated  When.— The  act  of  May  2,  1874  (taking  effect 

88  Baker  v.  Westcott,  73  Tex.  131,  11  S.  W.  157;  McCelvey  v. 
Cryer  (Tex.  Civ.  App.),  28  S.  W.  691;  and  see  ante,  §§  1012,  1013. 

87  1  Am.  &  Eng.  Ency.  of  Law,  2cl  cd.,  p.  568;  Silcoek  v.  Baker, 
25  Tex.  Civ.  App.  508;  61  S.  W.  939;  Bexar  B.  &  L.  Asan.  v.  Heady, 
21  Tex.  Civ.  App.  154,  50  S.  W.  1081. 

88  Birdseye  v.  Eogcrs   (Tex.  Civ.  App.),  26  S.  W.  843. 


§§  1046-1048     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.       426 

six  moiitlis  after  passage)  ,^^  provides  that  the  acts  of  all 
duly  appointed  notaries  in  ^his  state  heretofore  done  and 
performed  in  pursnance  to  laAV  shall  be  as  valid  and 
binding  as  though  said  notaries  had  been  duly  commis- 
sioned by  the  governor  a,nd  confirmed  by  the  Senate.^** 

§  1046.  Idem. — This  act  validates  the  acts  of  notaries 
public  whose  appointments  had  not  been  confirmed  by 
the  Senate. *** 

§  1047.  Constitution  of  1875— Certain  Titles  shall  not  be 
Kecorded,  etc. — Article  13,  section  4,  of  the  constitution 
of  November  24,  1875,^^  provides  that  no  claim  of  title 
or  right  to  land  which  issued  prior  to  the  thirteenth  day 
of  November,  1835,  which  has  not  been  duly  recorded  in 
the  county  where  the  land  was  situated  at  the  time  of 
such  record,  or  which  has  not  been  duly  recovered  in  the 
general  land  office,  shall  hereafter  be  deposited  in  the 
general  land  office  or  delineated  on  the  maps  or  used  as 
evidence  in  any  of  the  courts  of  this  state,  and  the  same 
are  stale  claims;  but  this  shall  not  affect  such  rights 
or  presumptions  as  arise  from  actual  possession.  By 
the  words  "duly  recorded"  as  used  in  sections  2  and  4 
of  this  article,  it  is  meant  that  such  claim  or  title  to 
land  shall  have  been  recorded  in  the  proper  office,  and 
that  mere  errors  in  the  certificate  of  registration  or  any 
formality  not  affecting  the  fairness  or  good  faith  of  the 
holder  thereof  with  which  the  record  was  made  shall  not 
be  held  to  vitiate  such  record. 

§  1048.  Act  of  June  16,  1876— Previous  Acts  by  County 
Judges  Which  Would  be  Authorized  by  this  Act  Validated.— 
The  act  of  June  16,  1876,^^  provided  that  all  official  acts 
performed  by  the  county  judge  or  clerk  of  the  county 

89   8  L.  T.  198. 

00   As  to  validity,  see  ante,  §§  1012,  1013. 

91  Brown  v.  State,  43  Tex.  480;  but  see  ante,  §  1006. 

92  8  L.  T.  822. 
9.3   8  L.  T.  860. 


427       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1049-1051 

court,  before  the  passage  of  this  act,  which  would  have 
been  authorized  by  its  provisions  had  this  act  been  in 
force  at  the  time  said  official  acts  were  performed,  shall 
be  as  valid  and  binding  on  all  parties  undertaken  to  be 
affected  thereby  as  if  the  same  had  been  performed  after 
the  taking  effect  of  this  act.  This  act  does  not  authorize 
county  judges  to  take  acknowledgments  and  proof  of 
instruments  of  writing  for  record,  and  it  seems  would 
not  validate  same.®* 

§  104&.  Act  of  July  28,  1876— Certificates  of  Married 
Women's  Acknowledgments  Validated. — The  act  of  July  28, 
1876  (taking  effect  November  19,  1876),'^^  validates  cer- 
tificates of  acknowledgments  of  deeds  of  married  women 
taken  before  any  chief  justice,  district  clerk,  notary  pub- 
lic or  other  officer  authorized  to  take  such  acknowledg- 
ments, whenever  such  certificate  of  acknowledgment  is 
invalid  because  the  same  is  wanting  in  any  word  re- 
quired by  law,  provided  that  such  certificate  shall  show 
on  its  face  that  the  married  woman  was  examined  by 
the  officer  taking  the  acknowledgment,  separate  and 
apart  from  her  husband  and  having  the  same  fully  ex- 
plained to  her,  she  declared  that  she  had  willingly 
signed  the  same  and  that  she  did  not  wish  to  retract  it, 
or  words  to  that  effect.  And  further  provided  that  this 
act  does  not  prevent  parties  pleading  fraud.  Does  it 
apply  to  chief  justices  when  they  were  unauthorized?®^ 

§  1050.  Note.— It  is  held  that  this  act  validates  the 
certificates  of  acknowledgment  of  a  married  womaai 
where  the  word  "separate"  was  used  in  the  place  of 
"privily."®'^ 

§  1051.  Act  of  March  13,  1879— Acknowledgments  by 
Persons  Holding  Both  Offices  of  District  and  County  Clerks 

04  As  to  validity,  see  ante,  §§  100(5,  1012,  1013. 

95  8   L.   T.   897. 

96  See  ante,  §§  1032-1037. 

97  McDannell   v.  Harroll,  1  U.  C.  521. 


§§  1052-1054     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.       428 

Validated.— The  act  of  March  13,  1879,^^  provided  "that 
all  acts  heretofore  done  by  persons  holding  both  the 
offices  of  clerk  of  the  district  and  county  courts,  which 
are  authorized  by  this  act,  are  hereby  legalized,  and 
shall  be  valid  as  though  this  law  was  in  effect  at  the 
time  of  said  acts." 

§  1052.  Act  of  April  18,  1879— Acknowledgments  of  No- 
taries Using  Defective  Seals  Validated. — The  act  of  April  18, 
1879,^^  provided  that  all  acts  of  notaries  ])ublic  appointed 
by  authority  of  the  laws  of  Texas,  evidenced  by  the 
impression  of  a  notarial  seal  having  the  word  "Texas" 
engraved  between  the  points  of  the  star  thereon  shall  be, 
and  they  are  hereby,  made  as  valid  and  binding  as 
though  the  word  "Texas"  had  been  engraved  on  the  mar- 
gin of  the  seal. 

§  1053.  Revised  Statutes  of  1879  and  1895— Legality  of 
Acknowledgment  and  Proof  Depends  on  Law  in  Force  at  Time 
Same  is  Made. — Articles  4351  and  4352  of  the  Revised 
Statutes  of  1879,  and  articles  4661  and  4662  of  the  Re- 
vised Statutes  of  1895  (taking  effect  September  1, 1879), 
provided  that  the  legality  of  the  acknowledgments  shall 
depend  for  their  validity  upon  the  laws  in  force  when  the 
act  was  performed,  and  makes  instruments  which  were 
properly  acknowledged  at  the  time  of  execution  under 
the  then  existing  laws  admissible  in  evidence, 

§  1054,  Acknowledgment  Cured  by  Action  at  Law. — Art- 
icles 4353,  4354  and  4355  of  the  Revised  Statutes  of 
1879  (articles  4663,  4664,  4665  of  the  Revised  Statutes 
of  1895),  provided  that  when  the  acknowledgment  or 
proof  of  the  execution  of  any  instrument  in  writing  may 
be  properly  made,  but  defectively  certified,  any  party 
interested  may  have  an  action  in  the  district  court  to 
obtain  a  judgment  correcting  the  certificate.  And  any 
person  interested  under  any  instrument  in  writing  en- 

98  8  L.  T.  1334. 

99  8  L.  T.  1408. 


429       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1055-1058 

titled  to  be  proven  for  record,  may  institute  action  in 
the  district  court  against  the  proper  parties  to  obtain 
a  judgment  proving  such  instrument,  A  certified  copy 
of  the  judgment  in  the  proceeding  instituted  under 
either  of  these  articles,  showing  the  proof  of  the  in- 
strument, and  attached  thereto,  shall  entitle  such  instru- 
ment to  record  with  like  effect  as  if  acknowledged. 

§  1055.  Idem. — An  acknowledgment,  whether  joint  or 
single,  if  properly  made,  though  defectively  certified, 
may  be  cured  by  action  under  this  act.  The  act  creates 
no  right  but  only  a  new  remedy,  a  means  of  proof;  it 
creates  no  deed,  but  evidence  of  it ;  the  acknowledgment 
being  the  essence  of  a  married  woman's  deed,  and  the 
certificate  the  evidence  of  it,  an  act  providing  for  such 
evidence  is  constitutional.  It  acts  prospectively  as  well 
as  upon  a  pre-existing  cause. -^^^ 


§  1056.  Barred  by  Limitation  When. — Action  under  the 
above  articles  will  be  barred  by  limitation  in  four  years 
from  the  execution  of  the  certificate.  ^^^ 

§  1057.  Revised  Statutes  of  1879  and  1895— Validate 
Want  of  Authority  in  Certain  Officers. — Articles  i356  and 
4357  of  the  Kevised  Statutes  of  1879,  and  articles  4666 
and  4667,  Revised  Statutes  of  1895,  are  the  same  as  the 
validating  act  of  February  9,  1860.^^^ 

§  1058.  Act  of  March  18,  1881— Validates  Defective  Seal. 
The  act  of  March  18,  1881^<>^  (taking  effect  July  1, 
1881),  validates  the  acts  of  notaries  appointed  by  au- 
thority of  the  hpvs  of  Texas,  evidenced  by  the  impres- 
sion of  a  notarial  seal,  having  the  word  "Texas"  en- 
graved just  over  the  points  of  the  star  thereon;  also 
where  the  word  "Texas"  is  engraved  between  the  points 

100  Johnson  v.  Tuylor,  GO  Tex.  370. 

101  Norton   v.   Davis,   83   Tex.   37,   18   S.   W.   4:;0;    Stone   v.   Sledge 
(Tex.  Civ.  App.),  24  S.  W.  697. 

102  See  ante,   §§   1029,  1030. 
10:$  <)  L.  T.  142. 


§§   1059-1060     CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     430 

of  the  star,  and  county  of  the  residence  of  the  authen- 
ticating officer  under  the  star ;  or  seals  having  the  words 

" county,  Texas,"  instead  of  "County  of ^, 

Texas,-'  are  hereby  made  as  valid  and  binding  as  though 
the  word  "Texas"  had  been  engraved  on  the  margin  of 
the  seal. 

§  1059.  Act  of  April  5,  1889— Acknowledgments  by  No- 
taries Using  Defective  Seals — Validated. — The  act  of  April 
5,  1889,^**^  provided  that  all  acts  of  notaries  public  ap- 
pointed by  authority  of  the  laws  of  Texas,  as  evidenced 
by  the  impression  of  the  notarial  seal  having  the  word 
"Texas"  engraved  just  over  the  points  of  the  star 
thereon,  also  where  the  word  "Texas"  is  engraved  bei- 
tween  the  poin'ts  of  the  star,  and  the  county  and  resi- 
dence of  the  authenticating  officer,  under  the  star  or 

seal  having  the  word  " county,  Texas,"  instead 

of  the  "County  of  — ,  Texas,"  are  hereby  made  as 

valid  and  binding  as  though  the  word  "Texas"  had 
been  engraved  on  the  margin  of  the  seal ;  and  the  rec- 
ords thereof  and  copies  of  same  shall  hereafter  be  notice 
and  admissible  in  evidence,  the  same  as  if  the  seal  had 
been  used  in  strict  conformity  with  law. 

§  1059a.  Act  of  April  15,  1905— Attempts  to  Validate 
Want  of  Corporate  Seal  in  Conveyances  by  Attorney  in  Fact. — 
This  act  provides  "that  all  conveyances  by  corporations 
heretofore  executed  in  the  manner  herein  set  forth  shall 
be  held  valid  so  far  as  regards  the  manner  of  execu- 
tion." But  this  validating  clause  is  not  indicated  in 
the  title  of  the  act;  furthermore  the  act  contains  an- 
other subject  matter,  thus  failing  to  comply  with  the 
constitution  in  two  particulars.^**^ 

C.  STATUTORY   ENACTMENTS- SPECIAL. 

§  1060.  Act  of  December  24,  1840,  validates  the  acts 
of  Samuel  Todd,  as  clerk  of  the  county  court  of  Shelby 
county.  *^<^ 

104  9  L.  T.  1149. 

105  See  ante,  §§   676,   677;   29  Legislature,  p.   230. 

106  2  L.  T.  613. 


431       CUEING  DEFECTIVE  ACKNOWLEDGMENTS.     §§  1061-1068 

§  1061.  Act  of  August  19,  1856,  validates  the  acts  of 
Levy  S.  McMicken  as  deputy  county  clerk  of  Polk 
county,  under  W.  H.  Duke  as  principal,^**'' 

§  1062.  Act  of  August  30,  1856,  validates  the  notarial 
acts  of  David  P.  Fearris,  as  notary  public  of  Ellis 
county.  ^**^ 

§  1063.  Act  of  May  18,  1871,  validates  the  official 
acts  of  Silas  McCrary  and  Jerry  Washington,  as  justices 
of  the  peace  for  Bowie  county. *^^ 

§  1064.  Act  of  May  25,  1871,  validates  the  official 
acts  of  I.  H.  Steen,  as  district  clerk  of  Hamilton 
county.**® 

§  1065.  Act  of  May  25,  1871,  validates  official  acts  of 
I.  H.  Steen,  as  justice  of  the  peace  of  Hamilton 
countv.*** 


^  1066.     Act  of  May  31,  1871,  validates  official  acts  of 
I.  A.  Lee,  justice  of  the  peace  of  Coryell  county. 


113 


§  1067.     Act  of  March  13,  1875,  validates  the  notarial 
acts  of  C.  L.  Thurmond,  of  Victoria  county.**^ 

§  1068.     Act  of  April  1,  1887,  validates  the  notarial 
acts  of  William  Veal,  for  Stephens  county.**'* 

107  4  L.  T.  459. 

108  4  L.  T.  503. 

109  6  L.  T.  998. 
no  6  L.  T.  10.33. 

111  6  L.  T.  1033. 

112  6  L.  T.  1040. 

113  8  L.  T.  573. 

114  9  L.  T.  912 


§§  1069, 1070        PLEADING  ACKNOWLEDGMENTS.  432 


CHAPTER  XXIX. 

PLEADING  ACKNOWLEDGMENTS  AND  PEOOF. 

§  1069.  Must   allege  ackuowledgnient   when. 

§  1070.  Idem. 

i  1071.  Married  woman  seeking  to  avoid  deed. 

§  3  072.  Must  attack  acknowledgment  by  affidavit  w^hen. 

J5  1069.  Must  Allege  Acknowledgment  When. — Where  the 
acknowledgment  or  proof  is  not  an  essential  part  of  theJ 
deed,  in  declaring  upon  the  deed  the  acknowledgment 
or  proof  need  not  be  alleged.*  But  where  the  acknowl- 
edgment is  essential  to  the  validity  of  the  instrument, 
as  in  case  of  a  married  woman's  deed,  in  declaring  upon 
it,  the  proper  examination,  acknowledgment  and  decla- 
ration must  be  alleged.^  It  is  sufficient,  however,  to 
allege  that  it  was  "duly  acknowledged"  by  her.^  In  the 
case  of  Nichols  v.  Gordon,  25  Tex.  Supp.  113,  a  mort- 
gage not  properly  acknowledged  by  the  wife  nor  alleged 
to  be  so  was  attached  to  the  petition  and  made  part  of 
same.     The  petition  of  course  was  insufifleient. 

§  1070.  Idem. — It  would  seem  that  where  the  proper 
examination,  acknowledgment  and  declaration  are  al- 
leged and  the  general  allegation  that  it  was  "duly  ac- 
knowledged" is  not  used  by  the  pleader,  it  would  be 
necessary  for  him  to  allege  every  essential  of  a  valid 
acknowledgment  by  a  married  woman,  to  wit,  that  she 
appeared  before  an  authorized  officer*  to  whom  she  was 
known  ;^  that  she  was  examined  by  him  separate  and 

1  Munger  v.  Baldridge,  41  Kan.  236,  13  Am.  St.  Rep.  273,  21  Pac. 
159. 

2  Cross  V.  Everts,  28   Tex.  533. 

3  Eoy  V.  Bremond,  22  Tex.  616;  Nichols  v.  Gordon,  25  Tex.  Supp. 
113;   Livingston   v.   Jones,   Harr.    (Mich.)    165. 

4  Ante,   S   329. 
r.   Ante,  §   301. 


433  PLEADING  ACKNOWLEDGMENTS.       §§1071,1072 

apart  from  her  husband,*^  and  the  instrument  fully  ex- 
plained to  her;''  that  she  acknowledged  to  him  that  she 
had  willingly  signed  the  same,^  and  that  she  did  not 
wish  to  retract  it,^  and  that  said  facts  were  duly  cer- 
tified to  by  said  officer  under  his  hand  and  official  seal^** 
in  a  certificate  attached  to  the  deed.^^ 

^  1071.  Married  Woman  Seeking  to  Avoid  Deed.— Where 
a  married  woman  seeks  to  set  aside  her  deed,  which  ap- 
pears from  the  certificate  to  have  been  properly  ac- 
knowledged by  her,  on  the  ground  that  her  acknowledg- 
ment was  not  properly  taken,  she  must  allege  that  those 
facts  were  known  to  the  grantee. ^^  But  the  general 
allegation  that  the  grantee  "knew  of  the  imperfect  privy 
examination"  was  sufficient.^^ 

§  1072.  Must  Attack  Acknowledgment  by  Affidavit  When. 
Where  plaintiff  sued  in  statutory  form  of  an  action  of 
trespass  to  try  title,  and  defendant  pleaded  not  guilty, 
defendant  offered  in  evidence  a  deed  with  proper  cer- 
tificate of  wife's  acknowledgment  on  it.  Plaintiff  of- 
fered to  prove  that  the  said  acknowledgment  was  ob- 
tained by  fraud.  Defendant  objected  to  this  evidence 
on  the  ground  that  plaintiff's  pleading  did  not  author- 
ize its  introduction.  The  court  held  that  under  that 
state  of  the  pleadings  plaintiff  could  attack  the  deed 
and  acknowledgment,  without  having  filed  an  affidavit 
showing  the  acknowledgment  was  a  nullity.  But  if 
defendant  had  pleaded  his  deed  and  acknowledgment, 

6  Ante,  §  290. 

7  Ante,  §  293. 

8  Ante,  §  298. 

9  Ante,  §  300. 

10  Ante,  §§  280,  281,  305. 

11  Ante,  §   124. 

12  Gray  v.   Shelby,  83  Tex.  40.5,  18  S.  W.  809. 

13  Idem.  And  see  Waltee  v.  Weaver,  57  Tex.  571;  Herring  v. 
White  (Tex.  Civ.  App.),  25  S.  W.  1017;  Miller  v.  Yturria,  69  Tex. 
553,  7  S.  W.  206;  ante,  §  319. 

28 


§  1072  PLEADING  ACKNOWLEDGMENTS.  434 

or  filed  it  among  the  papers  for  three  days  and  given 
the  required  notice,  the  rule  might  have  been  diffeir- 
ent** 

14   Breitling  v.  Chester,  88  Tex.  589,  32  S.  W.  527;   Sartor  v.  Bolin- 
ger,  ^9  Tex.  411. 


435  EEVENUE  STAMPS.  §  1073 


CHAPTER  XXX. 

EEVENUE    STAMPS. 

A.     GENEEAL  PEINCIPLES. 

§  1073.  Laws  which  required  the  use  of  revenue  st-uiips. 

Si   1074.  Effect   of   omission  under   Spanish   and   Mexican   laws. 

§   1075.  Effect   of  omissions  under  United   States  laws. 

§  1076.  Federal  laws  not  binding  on  state  courts. 

§  1077.  Federal  statutes  do  not  apply  to  state  courts. 

§  1078.  Laws  of  England  not  binding  here. 

B.     STAMP  LAWS  OF  SPAIN,  MEXICO  AND  TEXAS. 

§  1079.     Stamp  laws  prior  to  decree  of  1823. 

§   lOSO.     Decree  of  October  6,  1823 — Seals  or  stamps  and  their  valae 

and  use. 
§  1081.     Order  of  June  22,   1824 — Form   of  stamps. 
§  1(JS2.     Decree  of  October  2,  1824— Form  of  stamps. 
S  10^83.     Decree  of  March  24,  1825 — New  settlers  exempt. 
§  1084.     Instructions  of  May  31,  1827 — Eecord-book  to  be  stamped. 
§  1085.     Instructions     of     September     4,     1827 — Eecord-book     to     b« 

stamped. 
§  1086.     Decree   of  February   9,   1828— New   settlers  exempt. 
§  1087.     Ordinance   of   November   13,   1835 — Use   of  stamps  abolished. 

C.     STAMP    TiAWS    OF   UNITED    STATES. 

§   1088.     Acts   of   1864   and    1866. 

§  1089.  Act  of  June  13,  1898 — Stamps — How  attached  and  can- 
celed— Effect. 

§  1090.  Provision  that  deeds  are  not  admissible  in  evidence  or  of 
record,  unless  stamped. 

§  1(191.     Kinds  of  stamps. 

§   1092.     Exemptions. 

§  1093.     Schedule  A — Stamp  laws. 

A.     GENEEAL  PEINCIPLES. 

§  1073.  Laws  Which  Required  the  Use  of  Revenue  Stamps. 
The  ouly  laws  we  liave  found  requiring  the  use  of 
stamped  paper  or  stamps,  on  conveyances,  in  Texas, 
were  those  of  Spain  and  Mexico,  prior  to  their  abolition 


§§  1074,  1075  EEVENUE  STAMPS.  436 

l)j  the  Provisional  Goyernment  of  Texas  on  November 
13,  1S35,  and  those  of  United  States.^ 

§  1074.  Effect  of  Omission  Under  Spanish  and  Mexican 
Laws. — Omission  of  stamp  did  not  render  the  conveyance 
void  in  1835,  unless  there  was  some  provision  of  the 
law  which  so  declared.^  It  seems  that  under  the  Span- 
ish and  Mexican  laws  in  force  in  Texas  prior  to  1836, 
the  want  of  the  stamps  required  by  law  rendered  only 
the  authentication  void.^ 

§  1075.  Eifect  of  Omission  Under  United  States  Laws. — 
The  general  rule  is  that  the  absence  of  the  revenue 
stamp,  required  by  law,  from  instruments,  does  not  ren- 
der the  instrument  nor  the  registration  thereof  void, 
unless  it  is  shown  by  the  person  attacking  such  instru- 
ment or  objecting  to  the  same  that  the  stamps  were 
omitted  with  fraudulent  intent.  In  the  absence  of  af- 
firmative proof  fraudulent  intent  will  not  be  presumed."* 
The  act  of  Congress,  June  30,  1864,  as  amended  by  the 
act  of  Congress  July  13,  1866,  providing  that  the  record 
of  a  deed  not  duly  stamped,  or  on  which  the  stamp  is 
not  canceled,  shall  be  void,  if  the  omission  was  made 
for  the  purpose  of  defrauding  the  government,  does  not 
affect  the  validity  of  the  deed.^  Consequently,  it  is 
practically  immaterial  whether  or  not  the  early  laws 
of  United  States  requiring  the  use  of  a  stamped  paper 
or  stamps  were  complied  with,  as  it  would  seem  almost 
impossible  to  prove,  after  so  long  a  delay,  that  the 
stamps  were  omitted  with  fraudulent  intent.^ 

1  See  post,  §§  1079-1092;  ante,  §  3  (e). 

2  Carothers  v.  Covington  (Tex.  Civ.  App.),  27  S.  W.  1041. 

3  Ante,  §  3  (c);  Jones  v.  Montes,  15  Tex.  352. 

4  Campbell  v.  Wilcox,  10  Wall.  (U.  S.)  421,  19  L.  ed.  973;  United 
States  v.  Griswald,  8  Fed.  556;  Green  v.  Holway,  101  Mass.  243,  3 
Am.  Eep.  339;  Powell  v.  Feely,  49  111.  143;  Moore  v.  Moore,  47  N. 
Y.  467,  7  Am.  Rep.  468;  Trowbridge  v.  Addoms,  23  Colo.  518,  48  Pac. 
535. 

5  Dowell  v.  Applegate,  7  Fed.  881.  But  see  contra,  Chartier  etc. 
Co.  v.  McNamara,  72  Pa.  St.  336,  13  Am.  Rep.  680. 

6  See  13  Cyc.  559. 


437  REVENUE  STAMPS.  §§  1076-1078 

§  1076.  Federal  Law  not  Binding  on  State  Courts. — Un- 
der the  United  States  revenue  law  of  June,  1864,  pro- 
vidinii'  that  "No  deed,  instrument,  document,  or  writing 
of  paper  required  by  law  to  be  stamped,  which  has  been 
signed  or  issued  without  being  duly  stamped,  or  witL 
a  deficient  stamp,  nor  any  copy  thereof,  shall  be  re- 
corded or  admitted  as  evidence  in  any  court  until  a 
legal  stamp  or  stamps  shall  have  been  affixed  thereto," 
it  was  held  that  this  law  was  not  necessarily  binding 
on  state  courts,  and  that  they  could  disregard  it  if 
they  chose.  Also,  that  it  was  proper  to  permit  a  party 
to  stamp  the  instrument  in  court.''  Neither  do  our 
courts  recognize  the  constitutional  power  of  Congress 
to  tax  their  proceedings.* 

§  1077.  Federal  Statutes  do  not  Apply  to  State  Courts. — 
The  act  of  Congress  of  1898,  in  so  far  as  it  seeks  to  af- 
fect the  admissibility  of  unstamped  instruments  in  evi- 
dence, is  similar  to  the  acts  of  Congress  of  1864  and 
1866,  and  we  think  only  applied  to  courts  of  the  United 
States,  and  not  to  the  state  courts.^  The  United  States 
Revenue  Act,  providing  that  unstamped  instruments 
shall  not  be  recorded,  applies  only  to  records  pursuant 
to  United  States  statutes.^** 

§  1078.  Laws  of  England  not  Binding  Here. — The  omis- 
sion of  stamps  required  by  the  laws  of  England  does 
not  affect  the  validity  of  the  instrument  or  its  admissi- 
bility in  the  courts  of  the  United  States.*^ 

7  Dailey  v.  Coker,  33  Tex.  81'7,  7  Am.  Rep.  279;  Gregg  &  Co.  v. 
Fitzhugh,  36  Tex.  128;  Shipman  v.  Fulerod,  42  Tex.  249. 

8  Cavasas  v.  Gonsales,  33  Tex.  134. 

n  Watson  v.  Mirike,  25  Tex.  Civ.  App.  527,  61  S.  W.  541;  Car- 
penter V.  Snelling,  97  Mass.  452;  Rheinstrom  v.  Cone,  26  Wis.  163, 
7  Am.  Rep.  51;  Griffin  v.  Ranny,  35  Conn.  239;  United  States  Express 
Co.  V.  Haines,  48  111.  248. 

10  People  V.  Fromme,  35  N.  Y.  App.  Div.  459,  54  N.  Y.  Supp.  833. 

11  Linton   v.  National  L.  Ins.  Co.,  104  Fed.  584. 


§§  1079.  1080  EEVENUE  STAMPS.  438 


B.     STAMP  LAWS   OF   SPAIN,  MEXICO   AND   TEXAS. 

§  1079.  Stamp  Laws  Prior  to  Decree  of  1823. — It  seems 
that  under  the  Spanish  and  Mexican  la^ys  prior  to  the 
decree  of  October  6,  1823,  in  so  far  as  the  validity  of 
the  conveyance  was  concerned,  it  was  immaterial 
wlietlier  or  not  a  revenue  stamp  was  used.  There  was 
a  Spanish  decree  of  September  30,  1791,  to  the  effect 
that  sales  of  real  estate  should  be  by  a  public  writing; 
the  decree  providing  that  "whereas  frauds  have  been 
committed  on  the  revenue  by  making  secret  parol  sales 
of  real  estate,  it  is  ordered  that  the  alcabala  (taxes)  be 
collected  on  such  sales,"  because  the  contracts  became 
perfect  by  the  mere  consent  of  the  parties. -^^  Under 
the  Roman,  Spanish  and  Mexican  laws  only  three  things 
were  necessary  to  make  a  valid  contract :  First,  a  thing 
or  subject  matter  of  the  contract ;  second,  a  price ;  third, 
the  consent  of  the  parties. ^^  But  without  the  stamp 
the  authentication  would  be  void.-"^* 

§  1080.  Decree  of  October  6,  1823 — Seals  or  Stamps  and 
Their  Value  and  Use. — The  sovereign  Mexican  Congress 
has  concluded  to  decree  the  following  regulation  about 
sealed  paper: 

CHAPTER  I. 

CONCEENING    SEALS   AND    THEIR    VALUES. 

Art.  1.  The  classes  and  prices  of  sealed  paper  shall 
be  the  same  as  heretofore,  that  is  to  say :  1st.  Of  six  dol- 
lars; 2d.  Of  twelve  reals;  both  seals  on  a  sheet;  3d 
seal,  four  reals  on  a  sheet,  and  on  a  half,  two  reals ;  4th 
seal,  half  a  real,  and  on  a  half  sheet,  one-quarter  real. 
Another  kind  of  fine  paper  of  all  classes  will  be  stamped 
with  a  neat,  small  seal  on  the  upper  side  of  a  quarter  of 
a  sheet  of  paper  for  drafts  and  receipts. 

12  Hall's  Mexican  Law,  1555. 

13  Idem. 

14  Ante,  chapter  1,  sec.  3  (c);  Jones  v.  Montes,  15  Tex.  352;  Shir- 
burn  V.  Hunter,  21  Fed.  Cas.  No.  12,744. 


439  EEVENUE  STAMPS.  §  1080 

Art.  2.  The  seal  must  be  of  the  national  arms,  finely 
engraved  and  with  the  necessary  precautions  to  pre- 
vent counterfeiting,  and  inscribed  with  small,  plain 
letters,  without  number  or  abbreviation,  which  ex- 
presses the  class  of  the  seal  of  the  paper,  its  value,  and 
the  biennial  term  of  its  circulation. 

Art.  3.  The  special  for  drafts  and  receipts  will  ex- 
press, in  addition,  the  object  for  which  it  is  intended, 
the  two  terms  of  the  sums  for  which  it  is  to  be  used, 
and  the  value  of  the  paper. 

Art.  4.  Of  the  fourth  seal  a  part  will  be  stamped 
which  bears  this  rubric :  Official  ( for  the  use  which  will 
be  stated  afterward). 

CHAPTEE  II. 
CONCEENING  THE  USE  OF  SEALS. 

Art.  5.     The  first  seal  will  necessarily  be  used : 
*  ****  It  *  * 

On  the  titles  of  lands  whose  value  may  be  one  thou- 
sand dollars  upward. 

On  wills  whose  heir  or  heirs  may  not  be  descendants 
or  ascendants,  but  collaterals  or  strangers. 

On  all  writing  on  which  appears  an  act  of  liberality 
as  a  gift,  cession,  promise  of  legacy,  dowry,  etc.,  by 
which  knowingly  gain  results  to  a  party  to  the  amount 
of  tliree  hundred  dollars. 

On  the  writing  of  every  sale  or  contract  specified  or 
unspecified  on  wliich  is  placed  the  import  or  sum  of 
two  thousand  dollars  upward. 

Art.  6.  The  copies  or  testimonios  of  documents 
Avhich  should  be  issued  on  paper  of  the  first  seal  may 
be  put  on  the  same  when  they  are  given  separately  for 
the  use  of  interested  parties,  provided,  that,  the  sum 
of  these  may  be  more  than  the  amount  of  two  thousand 
dollars  and  upward. 

Art.  7.     The  second  seal  must  necessarily  be  used. 


§  1080  EEVENUE  STAMPS.  440 

On  the  A^  ritinjis  of  sale  or  oontraet  on  A\'liich  appears 
the  sum  from  three  hundred  to  one  thousand  nine  hun- 
dred and  ninety-nine  dollars. 

Powers  of  attorney  will  continue  to  be  issued  on  pa- 
per of  the  second  seal. 

It  wull  be  used  on  the  writings  in  which  a  definite 
sum  is  not  expressed,  but  indefinite,  unless  it  may  be 
inferred  what  it  is  from  the  context. 

*  ****  *»« 

On  the  copies  or  testimonios  o-iven  separately  by 
judges  or  notaries  for  the  use  of  parties,  provided  that 
the  interest  which  they  have  may  be  from  five  hundred 
to  one  thousand    nine  hundred  and  ninety-nine  dollars. 

Art.  8.     The  third  seal  shall  be  used: 

*  ***»  *»* 

On  the  original  acts  of  the  suits,  interlocutory  or 
definitive,  citations,  transfers,  declarations  and  all  ju- 
dicial proceedings  which  the  judge  may  make  at  the 
petition  of  the  party  either  in  contested  judgments  or 
proceedings  which  may  be  made  in  good  faith. 

On  the  certificates  that  may  be  given  by  the  priests 
at  the  request  of  the  party  of  certificate  of  baptism, 
marriage,  burial,  or  of  any  other  act  of  his  ministry, 
except  those  of  widows  and  orphans. 

On  the  certificates  which  may  be  given  by  the  magis- 
trates, the  learned  judges,  doctors,  teachers  and  other 
authorized  persons  at  the  petition  of  the  parties,  ex;- 
cepting  the  military  officers  in  affairs  which  are  relative 
to  the  service. 

*  ***»  *»* 

On  the  copies  and  testimonios  separately  of  all  the 
documents  which  may  be  given  for  the  use  of  interested 
parties,  whose  amounts  may  be  from  one  hundred  to 
four  hundred  and  ninety-nine  dollars. 

Notices  to  the  public  of  auctions,  public  sales  and 
others  which  by  law  or  custom  may  have  been  placed 
up  to  this  time  on  paper  of  the  third  seal  will  be  con-' 
tinned  in  the  same  way. 


441  KEVENUE  STAMPS.  §  1080 

On  the  protocols  or  registers  of  the  notaries  or  dele- 
gate judges  on  which  are  written  the  different  classes 
of  public  instruments  which  are  granted  by  parties  in 
their  contracts  or  business  matters. 

Art.  9.     The  fourth  seal  is  to  be  used : 

On  the  intermediate  leaves  of  every  certified  copy 
if  the  first  leaf  should  not  be  sufficient  of  the  seal  which 
for  its  class  and  quantity  should  be  issued. 

On  the  wills  or  testaments  and  other  records  of  the 
notoriously  poor. 

On  the  writings  or  demands  of  the  notoriously  poor^ 
and  the  proceedings  which  were  had  in  consequence  of 
them. 

On  the  causes,  purely  criminal,  which  are  acted  on 
by  accusation. 

On  every  appointment,  office  or  secretaryship,  prin- 
cipal or  subaltern,  secular  or  ecclesiastical;  the  fourth 
seal  will  be  used  also  on  the  books  of  the  acts,  acknowl- 
edgments, registers,  memoranda  of  parcels,  received  or 
paid  out,  warrants,  certificates,  copies  of  accounts, 
sworn  statements,  receipts  and  other  records  of  offices, 
except  the  official  letters  of  reply,  and  blotters,  lists, 
and  other  memoranda  where  there  are  provisionally 
set  down  some  parcels  or  proceedings  before  putting 
them  on  the  books. 

CHAPTER  III. 

FORM  OF  PAPER  AND  PENALTIES  FOR  INFRACTIONS. 
«  ****  *** 

Art.  10.  Every  title  or  document,  whatever  it  may 
be,  that  may  not  be  issued  on  paper  of  the  correspond- 
ing seal  according  to  this  regulation  shall  not  be  valid 
in  court,  nor  admitted  in  the  offices  of  account  and  cal- 
culation. 


§  J  081  EEVENUE  STAMPS.  442 

CHAPTER  IV. 

GENEEAL  PROVISIONS. 


Art,  14.  The  damaged  seal  of  the  first  and  second 
class  will  be  admitted  in  exchange,  according  to  custom, 
charging  the  value  of  two  reals.  The  exchange  of  the 
third  seal  will  be  made  for  the  value  of  half  a  real. 

For  every  exchange  the  proof  of  the  notary  must  ap- 
pear on  the  sheet  which  has  been  spoiled. 

*  ****  *** 

Note. — This  law  provided  that  an  instrument  not 
properly  stamped  was  not  properly  authenticated  so 
as  to  be  full  proof,  and  would  require  other  proof  to 
establish  its  validity.*^ 

§  1081.  Order  of  June  22,  1824— Form  of  Stamps. — On 
June  22,  1824,  the  political  chief  of  Texas  wrote  to 
Stephen  F.  Austin,  authorizing  him  ''to  stamp  as  much 
common  paper  as  may  be  necessary  for  the  inhabitants, 
doing  it  by  means  of  a  line  at  the  top  of  each  sheet  with 
these  expressions :  'Sello  30  4rrs,  Habitado  par  la  Na- 
cion  Mexicano  parael  ano  de  1824,  Austin,'  signing  it 
with  your  surname  only."  After  which  the  interested 
person  shall  take  the  same  paper  to  the  alcalde  of  the 
district,  who,  as  the  personal  collector  of  the  revenue, 
shall  collect  its  value,  and  put  up  on  the  margin  of  each 
sheet  the  following  expressions :  "Pago  el  interesado 
en  este  jusgado  de  mi  cargo  les  cuatro  riales  importe 
del  Sello  anterior,"  and  signature  of  alcalde.  "The 
same  will  be  observed  with  regard  to  stamps  of  other 
classes,"  etc.  ^^ 

15  Jones  V.  Montes,  15  Tex.  352,  ante,  §  3  (c).  The  copy  of  the 
above  decree  of  October  6,  1823,  in  the  Spanish  language,  was  ob- 
tained from  the  United  States  Consul  General  at  Mexico  City  and 
translated  by  Martin  M.  Kinney,  Spanish  translator  of  the  General 
Land  Office  of  Texas. 

16  1  L.  T.  3U. 


443  REVENUE  STAMPS.  §§  1082-1085 

§  1082.  Decree  of  October  2,  1824— Form  of  Stamps.— On 
October  2,  1824,  the  Congress  of  the  states  of  Coahuila 
and  Texas  decreed  that  the  gwernor  shall  order  a  seal 
engraved,  for  the  purpose  of  stamping  or  legalizing 
paper,  bearing  the  following  inscription :  "Legalized  by 
the  state  of  Coahuila  and  Texas  for  the  two  years'  term 
of  1824  and  1825.''  In  order  that  such  paper  may  be 
readily  obtained,  the  agents  of  the  tobacco  establish- 
ments shall  transact  this  business.  In  other  respects, 
the  law  of  the  6th  of  October,  1823,  relative  to  stamped 
paper,  shall  be  observed  so  far  as  it  is  applicable  to  the 
state.  Notwithstanding  there  is  known  to  be  no  offi- 
cial paper  of  the  fourth  stamp  among  the  various  kinds 
in  this  capital,  the  governor  shall  direct  another  stamp 
to  be  made,  bearing  the  rubric  official,  to  be  impressed 
upon  paper  of  the  fourth  stamp,  on  the  part  required.^' 

§  1083.  Decree  of  March  24,  1825— New  Settlers  Exempt. 
On  :March  24,  1825,  it  was  provided  by  the  colonization 
law  that  during  the  first  ten  years  new  settlements 
should  be  free  from  all  dues,  taxes,  etc.** 

§  1084.  Instructions  of  May  31,  1827— Record-book  to  be 
Stamped.— On  ]May  31,  1827,  the  governor  in  his  instruc- 
tions to  S.  F.  Austin  as  to  his  keeping  a  record  of  the 
titles  of  his  colony,  states  that  inasmuch  as  the  paper 
on  which  the  original  titles  are  extended,  has  been  paid 
for,  the  said  book  shall  be  stamped  by  the  collector  of 
the  stamp  duties  of  the  town  of  San  Filipe  de  Austin, 
with  the  stamp  of  the  fourth  seal;  and  he  will  collect 
the  value  of  one  stamp  for  each  leaf. 


19 


§  1085.  Instructions  of  September  4,  1827— Record-book 
to  be  Stamped.— On  September  4,  1827,  S.  F.  Austin  is 
again  instructed  to  form  a  manuscript  book  of  paper 
of  the  third  stamp  in  which  shall  be  written  the  titles 


17  1  L.  T.  120. 
IS  1  L.  T.  104. 
10   1  L.  T.  38. 


§§  10S6-1089  EEVENUE  STAMPS.  444 

of  (lie  lands  distributed  to  the  colonists,  and  certified 
copies  of  each  title  shall  be  taken  from  said  book  on 
paper  of  the  second  stamp,  and  delivered  to  the  inter- 
ested parties.'** 

§  1086.  Decree  of  February  9,  1828— New  Settlers  Exempt. 
On  February  9,  1828,  it  was  decreed  by  the  Congress  of 
the  state  that  the  inhabitants  of  the  new  Texas  colonies, 
and  of  every  other  town  whatever  hereafter  founded 
in  this  state  shall  be  exempted  from  complying  with  the 
stamped  paper  law  for  the  terai  of  ten  years,  as  pro- 
vided in  section  32  of  the  colonization  law  of  March  24, 
1825,  except  as  regards  titles  to  property  of  each  town, 
etc.^i 

§  1087.  Ordinance  of  November  13,  1835 — Use  of  Stamps 
Abolished.— On  November  13,  1835,  the  Provisional  Gov- 
ernment of  Texas  abolished  the  use  of  stamped  paper  "" 


22 


C.     STAMP   LAWS    OF   UNITED    STATES. 

§  1088.  Acts  of  1864  and  1866.— As  the  acts  of  1864  and 
1866  are  similar  to  the  act  of  June  13,  1898,  in  so  far  as 
they  affect  the  admissibility  of  instruments  in  evidence 
and  of  record,  the  latter  act  only  will  be  considered.^^ 

§  1089.  Act  of  June  13,  189824_Stamps— How  Attached 
and  Canceled— Effect.— This  law  required  the  use  of 
stamps  on  the  instruments  designated  in  Schedule  A 
of  said  act,^^  which  stamps  shall  be  canceled  by  the 
userwritingthereon  the  initials  of  his  name  and  the  date, 
and  section  13  of  same  provided  that  any  instrument, 
document  or  paper  mentioned  in  Schedule  A  not  being 
stamped  according  to  law,  shall  be  deemed  invalid  and  of 

20  1  L.  T.  56. 

21  1  L.  T.  207. 

22  Art.  16j  1  L.  T.  911. 

23  Ante,  §  1077;  V.  S.  Eev.  Stats.  1878,  p.  671. 

24  U.  S.  Comp.  Stats.  1901,  vol.  2,  2286  (taking  effect  July  1,  1898, 
repealed  July  1,  1901). 

25  Post,  §  1092. 


445  REVENUE  STAMPS.  §§  1090-1093 

no  effect ;  provided  the  same  may  be  afterward  validated, 
by  an  interested  person  appearing  before  the  collector  of 
internal  revenues  of  the  proper  district,  and  paying  the 
price  of  the  proper  stamp  and  a  penalty  of  ten  dollars, 
and  affix  the  stamp  and  note  on  the  margin  of  the  instru- 
ment the  date  of  his  so  doing ;  provided  that  if  the  omis- 
sion was  through  mistake,  etc.,  the  penalty  may  be  remit- 
ted. When  the  instrument  has  been  recorded  and  the 
stamp  afterward  affixed,  it  shall  be  lawful  for  the  re- 
corder to  record  the  same,  or  note  upon  the  original  rec- 
ord the  fact  that  the  error  or  omission  in  stamping  has 
been  corrected ;  and  such  original  or  copy  may  be  used 
in  all  the  courts  as  though  it  had  been  originally 
stamped.^^ 

^  1090.  Provision  that  Deeds  are  not  Admissible  in  Evi- 
dence or  of  Record  Unless  Stamped. — Section  14  provides 
that  no  instrument  as  aforesaid,  not  properly  stamped, 
shall  be  recorded  or  admitted  or  used  as  evidence  in 
any  court,  etc.  And  section  15  provided  that  it  shall 
not  be  lawful  to  record  same  and  the  record  thereof 
shall  not  be  used  as  evidence.^''  The  above  sections  are 
not  binding  on  state  courts. 

§  1091.  Kind  of  Stamps. — Section  16  provides  that  no 
particular  kind  of  stamps  were  required  j)rovided  a 
legal  documentary  stamp  of  the  proper  denomination 
was  used. 

§  1092.  Exemptions. — Section  17  exempted  states, 
counties,  towns  or  other  corporations  with  taxing  power 
and  certain  co-operative  building  and  loan  associations. 

§  1093.  Schedule  A — Stamp  Taxes. — Bonds,  dchentiires, 
or  rcriificaics  of  indrhtcdncss  issued  after  the  first  day 
of  July,  Anno  Domini  eighteen  hundred  and  ninety- 
eight,  by  any  association,  company,  or  corporation,  on 

26  See  ante,  §  1075. 

27  But  see  ante,  §  1075. 


§  1093  REVENUE  STAMPS.  446 

each  hundred  doUars  of  face  valuer  or  fraction  thereof, 
five  cents,  and  on  each  original  issue,  whether  on  organ- 
ization or  reorganization,  of  certificates  of  stocl?;  by  any 
such  association,  company  or  corporation,  on  each  hun- 
dred dolhirs  of  face  value  or  fraction  thereof,  five  cents, 
and  on  all  sales,  or  agreements  to  sell,  or  memoranda 
of  sales  or  deliveries  or  transfers  of  shares  or  certifi- 
cates of  stock  in  any  association,  company   or  corpora- 
tion, whether  made  upon  or  shown  by  the  books  of  the 
association,   company    or  corporation,   or  by  any   as- 
signment in  blank,  or  by  any  delivery,  or  by  any  paper 
or  agreement  or  memorandum    or  other    evidence    of 
transfer    or  sale,  whether    entitling  the   holder  in  any 
manner  to  the  benefit  of  such  stock,  or  to  secure  the 
future  payment  of  money  or  for  the  future  transfer  of 
any  stock,  on  each  hundred  dollars  of  face  value  or 
fraction  thereof,  two  cents;  provided,  that  in  case  of 
sale  where  the  evidence  of  transfer  is  shown  only  by 
the  books  of  the  company  the  stamp    shall    be    placed 
upon  such  books;  and  where  the  change  of  ownership 
is  by  transfer  certificate  the  stamp  shall  be  placed  upon 
the  certificate ;  and  in  cases  of  an  agreement  to  sell,  or 
where  the  transfer  is  by  delivery  of  the  certificate  as- 
signed in  blank  there  shall  be  made  and  delivered  by 
the  seller  to  the  buyer  a  bill  or  memorandum  of  such 
sale,  to  which  the  stamp  shall  be  affixed ;  and  every  bill 
or  memorandum  of  sale   or  agreement  to   sell  before 
mentioned  shall  show  the  date  thereof,  the  name  of  the 
seller,  the  amount  of  the  sale,  and  the  matter  or  thing 
to  which  it  refers.     And  any  person  or  persons  liable 
to  pay  the  tax  as  herein  provided,  or  anyone  who  acts 
in  the  matter  as  agent  or  broker  for  such  person  or 
persons,  who  shall  make  any  such  sale,  or  who  shall  in 
pursuance  of  any  such  sale  deliver  any  such  stock,  or 
evidence  of  the  sale  of  any  such  stock  or  bill  or  memo- 
randum thereof,  as  herein  required,  without  having  the 
proper  stamps  affixed  thereto,  with  intent  to  evade  the 
foregoing  provisions  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  pay  a  fine 
of  not  less  than  five  hundred  nor  more  than  one  thou- 


447  BEVENUE  STAMPS.  §  1093 

sand  dollars,  or  be  imprisoned  not  more  than  six  months, 
or  both,  at  the  discretion  of  the  court. 

Upon  each  sale,  agreement  of  sale^  or  agree'ment  to 
sell,  any  products  or  merchandise  at  any  exchange,  or 
board  of  trade,  or  other  similar  place,  either  for  present 
or  future  delivery,  for  each  one  hundred  dollars  in 
value  of  said  sale  or  agTeement  of  sale  or  agreement  to 
sell,  one  cent,  and  for  each  additional  one  hundred 
dollars  or  fractional  part  thereof  in  excess  of  one 
hundred  dollars,  one  cent;  provided,  that  on  every 
sale  or  agreement  of  sale  or  agreement  to  sell  as 
aforesaid  there  shall  be  made  and  delivered  by  the 
seller  to  the  buyer  a  bill,  memorandum,  agreement 
or  other  evidence  of  such  sale,  agreement  of  sale, 
or  agreement  to  sell,  to  which  there  shall  be  af- 
fixed a  lawful  stamp  or  stamps  in  value  equal  to  the 
amount  of  the  tax  on  such  sale.  And  every  such  bill, 
memorandum,  or  other  evidence  of  sale  or  agreement 
to  sell,  shall  show  the  date  thereof,  the  name  of  the 
seller,  the  amount  of  the  sale,  and  the  matter  or  thing 
to  which  it  refers;  and  any  person  or  persons  liable 
to  pay  the  tax  as  herein  provided,  or  anyone  who  acts 
in  the  matter  as  agent  or  broker  for  such  person  or  per- 
sons, who  shall  make  any  such  sale  or  agreement  of  sale, 
or  agTeement  to  sell,  or  who  shall,  in  pursuance  of  any 
such  sale,  agreement  of  sale,  or  agreement  to  sell,  de- 
liver any  such  products  or  merchandise  without  a  bill, 
memorandum,  or  other  evidence  thereof  as  herein  re- 
quired, or  who  shall  deliver  such  bill,  memorandum 
or  other  evidence  of  sale,  or  agreement  to  sell,  without 
having  the  proper  stamps  affixed  thereto,  with  intent 
to  evade  the  foregoing  provisions,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  pay  a  fine  of  not  less  than  five  hundred  nor  more 
than  one  thousand  dollars,  or  be  imprisoned  not  more 
than  six  months,  or  both,  at  the  discretion  of  the  court. 

Bank  check,  draft,  or  certificate  of  deposit,  not  draw- 
ing interest,  or  order  for  the  payment  of  any  sum  of 
money,  drawn  upon  or  issued  by  any  bank,  trust  com- 


§  1093  REVENUE  STAMPS.  448 

pany,  or  any  person  or  persons,  companies   or  corpora- 
tions at  sight  or  on  demand,  two  cents. 

Bin  of  exchange  {inland),  draft,  certificate  of  deposit 
drawino-  interest,  or  order  for  the  payment  of  any  sum 
of  money,  otherwise  than  at  sight  or  on  demand,  or  any 
promissory  note  except  bank  notes  issued  for  circula- 
tion, and  for  each  renewal  of  the  same,  for  a  sura  not 
exceeding  one  hundred  dollars,  two  cents ;  and  for  each 
additional  oue  hundred  dollars  or  fractional  part 
thereof  in  excess  of  one  hundred  dollars,  two  cents. 
And  from  and  after  the  first  day  of  July,  eighteen  hun- 
dred and  ninety-eight,  the  provisions  of  this  paragraph 
shall  apply  as  well  to  original  domestic  money  orders 
issued  by  the  government  of  the  United  States,  and 
the  price  of  such  money  orders  shall  be  increased  by 
a  sum  equal  to  the  value  of  the  stamps  herein  provided 
for. 

Bill  of  exchange  (foreign)  or  letter  of  credit  (in- 
cluding money  orders  by  telegraph  or  otherv\dse  for  the 
payment  of  money  issued  by  express  or  other  companies 
or  any  person  or  persons),  drawn  in  but  payable  out 
of  the  United  States,  if  drawn  single  or  otherwise  than 
in  a  set  of  three  or  more,  according  to  the  custom  of 
merchants  and  bankers,  shall  pay  for  a  sum  not  ex- 
ceeding one  hundred  dollars,  four  cents,  and  for  each 
one  hundred  dollars  or  fractional  part  thereof  in  excess 
of  one  hundred  dollars,  four  cents. 

If  drawn  in  sets  of  ttvo  or  more:  For  every  bill  of 
each  set,  where  the  sum  made  payable  shall  not  exceed 
one  hundred  dollars,  or  the  equivalent  thereof,  in  any 
foreign  currency  in  which  such  bill  may  be  expressed, 
according  to  the  standard  of  value  fixed  by  the  United 
States,  two  cents;  and  for  each  one  hundred  dollars  or 
fractional  part  thereof  in  excess  of  one  hundred  dollars, 
two  cents. 

Bills  of  lading  or  receipt  (other  than  charter-party) 
for  any  goods,  merchandise  or  effects,  to  be  exported 
from  a  port  or  place  in  the  United  States  to  any  for- 
eign port  or  place,  ten  cents. 


449  REVENUE  STAMPS.  §  1093 

Express  and  freiglit:  It  shall  be  the  duty  of  every 
railroad  or  steamboat  company,  carrier,  express  com- 
pany or  corporation  or  person  whose  occupation  is  to 
act  as  such,  to  issue  to  the  shipper  or  consignor,  or  his 
agent,  or  person  for  whom  any  goods  are  accepted  for 
transportation,  a  bill  of  lading,  manifest,  or  other  evi- 
dence of  receipt,  and  forwarding  for  each  shipment  re- 
ceived for  carriage  and  transportation,  whether  in  bulk 
or  in  boxes,  bales,  packages,  bundles,  or  not  so  inclosed 
or  included;  and  there  shall  be  duly  attached  and  can- 
celed, as  is  in  this  act  provided,  to  each  of  said  bills 
of  lading,  manifest,  or  other  memorandum,  and  to  each 
duplicate  thereof,  a  stamp  of  the  value  of  one  cent; 
provided,  that  but  one  bill  of  lading  shall  be  required 
on  bundles  or  packages  of  newspapers  when  inclosed  in 
one  general  bundle  at  the  time  of  shipment.  Any  fail- 
ure to  issue  such  bill  of  lading,  manifest,  or  other  mem- 
orandum, as  herein  provided,  shall  subject  such  rail- 
road or  steamboat  company,  carrier,  express  company, 
or  corporation  or  person  to  a  penalty  of  fifty  dollars  for 
each  offense,  and  no  such  bill  of  lading,  manifest,  or 
other  memorandum  shall  be  used  in  evidence  unless  it 
shall  be  duly  stamped  as  aforesaid. 

Telephone  messages:  It  shall  be  the  duty  of  every  per- 
son, firm  or  corporation  owning  or  operating  any  tele- 
phone line  or  lines  to  make  within  the  first  fifteen  days 
of  each  month  a  sworn  statement  to  the  collector  of  in- 
ternal revenue  in  each  of  their  respective  districts,  stat- 
ing the  number  of  messages  or  conversations  trans- 
mitted over  their  respective  lines  during  the  preceding 
month,  for  which  a  charge  of  fifteen  cents  or  more  was 
imposed,  and  for  each  of  such  messages  or  conversations 
the  said  person,  firm  or  corporation  shall  pay  a  tax  of 
one  cent;  provided,  that  only  one  payment  of  said  tax 
shall  be  required,  notwithstanding  the  lines  of  one  or 
more  persons,  firms  or  corporations  shall  be  used  for 
the  transmission  of  each  of  said  messages  or  conversa- 
tions. 

29f 


§  1093  REVENUE  STAMPS.  450 

Bond:  For  indeiimifvine^  any  person  or  persons,  firm, 
or  corporation  who  shall  liave  become  hound  or  enoages 
as  surety  for  the  payment  of  any  sum  of  money,  or  for 
the  due  execution  or  performance  of  the  duties  of  any 
office  or  position,  and  to  account  for  money  received  by 
virtue  thereof,  and  all  other  bonds  of  any  description, 
except  such  as  may  be  required  in  legal  proceedings,  not 
otherwise  provided  for  in  this  schedule,  fifty  cents. 

Certificate  of  profits,  or  any  certificate  or  memoran- 
dum showing  an  interest  in  the  property  or  accumula- 
tions of  any  association,  company,  or  corporation,  and 
on  all  transfers  thereof,  on  each  one  hundred  dollars  of 
face  value  or  fraction  thereof,  two  cents. 

Certificate:  Any  certificate  of  damage,  or  otherwise, 
and  all  other  certificates  or  documents  issued  by  any 
port  warden,  marine  survej^or  or  other  person  acting  as 
such,  twenty-five  cents. 

Certificates  of  any  description  required  by  law 
not  otherwise  specified  in  this  act,  ten  cents. 

Charter-party:  Contract  or  agreement  for  the  charter 
of  any  ship,  or  vessel  or  steamer,  or  any  letter,  memo- 
randum, or  other  writing  between  the  captain,  master, 
or  owner,  or  person  acting  as  agent  of  any  ship,  or  vessel 
or  steamer,  and  any  other  person  or  persons,  for  or  re- 
lating to  the  charter  of  such  ship,  or  vessel,  or  steamer, 
or  any  renewal  or  transfer  thereof,  if  the  registered  ton- 
nage of  such  ship  or  vessel,  or  steamer  does  not  exceed 
three  hundred  tons,  three  dollars. 

Exceeding  three  hundred  tons  and  not  exceeding  six 
hundred  tons,  five  dollars. 

Exceeding  six  hundred  tons,  ten  dollars. 

Contract:  Brokers'  note,  or  memorandum  of  sale  of 
any  goods  or  merchandise,  stocks,  bonds,  exchange, 
notes  of  land,  real  estate,  or  property  of  any  kind  or 
description  issued  by  brokers  or  persons  acting  as  such, 
for  each  note  or  memorandum  of  sale,  not  otherwise 
provided  for  in  this  act,  ten  cents. 


451  EEVENUE  STAMPS.  §  1093 

Conveyance :  Deed,  instrument  or  writing,  whereby 
any  lands,  tenements  or  other  realty  sold  shall  be 
granted,  assigned,  transferred,  or  otherwise  conveyed 
to,  or  vested  in,  the  purchaser  or  purchasers,  or  any 
other  person  or  persons,  by  his,  her,  or  their  direction, 
when  the  consideration  or  value  exceeds  one  hundred 
dollars  and  does  not  exceed  five  hundred  dollars,  fifty 
cents;  and  for  each  additional  five  hundred  dollars,  or 
fractional  part  thereof  in  excess  of  five  hundred  dollars, 
fifty  cents. 

Dispatch,  telegraphic:  Any  dispatch  or  message,  one 
cent. 

Entry  of  any  goods,  wares,  or  merchandise  at  any  cus- 
tom-house, either  for  consumption  or  warehousing,  not 
exceeding  one  hundred  dollars  in  value,  twenty-five 
cents. 

Exceeding  one  hundred  dollars  and  not  exceeding 
five  hundred  dollars  in  value,  fifty  cents. 

Exceeding  five  hundred  dollars  in  value,  one  dollar. 

Entry  for  the  withdrawal  of  any  goods  or  merchan- 
dise from  customs  bonded  warehouse,  fifty  cents. 

Insurance  (life) :  Policy  of  insurance,  or  other  instru- 
ment, by  whatever  name  the  same  shall  be  called, 
whereby  any  insurance  shall  hereafter  be  made  upon 
any  life  or  lives,  for  each  one  hundred  dollars  or  frac- 
tional part  thereof,  eight  cents  on  the  amount  insured; 
provided,  that  on  all  policies,  for  life  insurance  only, 
issued  on  the  industrial  or  weekly  payment  plan  of  in- 
surance, the  tax  shall  be  forty  per  centum  of  the  amount 
of  the  first  weekly  premium.  And  it  shall  be  the  duty 
of  each  person,  firm  or  corporation  issuing  such  policies 
to  make  within  the  last  fifteen  days  of  every  month  a 
sworn  statement  to  the  collector  of  internal  revenue  in 
each  of  their  respective  districts  of  the  total  amount  of 
first  weekly  premiums  received  on  such  policies  issued 
by  the  said  person,  firm  or  corporation  during  the  pre- 
ceding month,  and  upon  the  total  amount  so  received, 
the  said  person,  firm,  or  corporation  shall  pay  the  said 


§  1093  EEVENUE  STAMPS.  452 

tax  of  forty  per  centum ;  provided,  further,  that  the  pro- 
visions of  this  section  shall  not  apply  to  any  fraternal, 
beneficiary  society,  or  order,  or  farmers'  purely  local 
co-operative  company  or  association,  or  employees'  re- 
lief association  operated  on  the  lodge  system,  or  local 
co-operative  plan,  organized  and  conducted  solely  by 
the  members  thereof  for  the  exclusive  benefit  of  its  mem- 
bers and  not  for  profit. 

Insurance  (marine,  inland,  -fire):  Each  policy  of  in- 
surance or  other  instrument,  by  whatever  name  the 
same  shall  be  called,  by  which  insurance  shall  be  made 
or  renewed  upon  property  of  any  descri|)tion  (includ- 
ing rents  and  profits),  whether  against  perils  by  sea  or 
on  inland  waters,  or  by  fire  or  lightning,  or  other  peril, 
made  by  any  person,  association,  or  corporation,  upon 
the  amount  of  premium  charged,  one-half  of  one  cent  on 
each  dollar  or  fractional  part  thereof;  provided,  that 
purely  co-operative  or  mutual  fire  insurance  companies 
carried  on  by  the  members  thereof  solely  for  the  pro- 
tection of  their  own  property  and  not  for  profit  shall 
be  exempted  from  the  tax  herein  provided. 

Insurance  (casualty,  fidelity  and  guarantee) :  Each 
policy  of  insurance,  or  bond  or  obligation  of  the  nature 
of  indemnity  for  loss,  damage,  or  liability  issued,  or 
executed,  or  renewed  by  any  person,  association,  com- 
pany or  corporation,  transacting  the  business  of  acci- 
dent, fidelity,  employers'  liability,  plate  glass,  steam 
boiler,  burglary,  elevator,  automatic  sprinkler,  or  other 
branch  of  insurance  (except  life,  marine,  inland  and 
fire  insurance),  and  each  bond  undertaking  or  recogni- 
zance, conditioned  for  the  performance  of  the  duties  of 
any  office  or  position,  or  for  the  doing  or  not  doing  of 
anything  therein  specified,  or  other  obligation  of  the 
nature  of  indemnity,  and  each  contract  or  obligation 
guaranteeing  the  validity  or  legality  of  bonds  or  other 
obligations  issued  by  any  state,  county,  municipal,  or 
other  public  body  or  organization,  or  guaranteeing  titles 
to  real  estate  or  mercantile  credits  executed  or  guaran- 


453  EEYENUE  STAMPS.  §  1093 

teed  bj  any  fidelity,  guarantee  or  surety  company  upon 
the  amount  of  premium  charged,  one-half  of  one  cent  on 
each  dollar  or  fractional  part  thereof. 

Lease,  agreement,  memorandum  or  contract  for  the 
hire,  use  or  rent  of  any  land,  tenement  or  portion 
thereof — 

If  for  a  period  of  time  not  exceeding  one  year,  twenty- 
five  cents. 

If  for  a  period  of  time  exceeding  one  year  and  not 
exceeding  three  years,  fifty  cents. 

If  for  a  period  exceeding  three  years,  one  dollar. 

Manifest  for  custom-house  entry  or  clearance  of  the 
cargo  of  any  ship,  vessel,  or  steamer  for  a  foreign  port — 

If  the  registered  tonnage  of  such  ship,  vessel,  or 
steamer  does  not  exceed  three  hundred  tons,  one  dollar. 

Exceeding  three  hundred  tons,  and  not  exceeding  six 
hundred  tons,  three  dollars. 

Exceeding  six  hundred  tons,  five  dollars. 

Mortgage  or  pledge  of  lands,  estate  or  property,  real 
or  personal,  heritable  or  movable,  whatsoever,  where 
the  same  shall  be  made  as  a  security  for  the  payment 
of  any  definite  and  certain  sum  of  money,  lent  at  the 
time  or  previously  due  and  owing  or  foreborne  to  be 
paid,  being  payable;  also  any  conveyance  of  any  lands, 
estate,  or  property  whatsoever,  in  trust  to  be  sold  or 
other^'ise  converted  into  money,  which  shall  be  intended 
only  as  security,  either  by  express  stipulation  or  other- 
wise; on  any  of  the  foregoing  exceeding  one  thousand 
dollars  and  not  exceeding  one  thousand  five  hundred 
dollars,  twenty-five  cents ;  and  on  each  five  hundred  dol- 
lars or  fractional  part  thereof  in  excess  of  fifteen  hun- 
dred dollars,  twenty-five  cents;  provided,  that  upon 
each  and  every  assignment  or  transfer  of  a  mortgage, 
lease,  or  policy  of  insurance,  or  the  renewal  or  continu- 
ance of  any  agreement,  contract,  or  charter,  by  letter 
or  otherwise,  a  stamp  duty  shall  be  required  and  paid 
at  the  same  rate  as  that  imposed  on  the  original  instru- 
ment. 


§  1093  EEVENUE  STAMPS.  454 

Passage  ticket,  by  any  vessol  from  a  port  in  the  United 
States  to  a  foreijin  port,  if  costing  not  exceeding  thirty 
dollars,  one  dollar.  i 

Costing  more  than  thirty  and  not  exceeding  sixty  dol- 
lars, three  dollars.  ' 
Costing  more  than  sixty  dollars,  five  dollars. 

Poioer  of  attorney  or  proxy  for  voting  at  any  election 
for  officers  of  any  incorporated  company  or  association, 
except  religious,  charitable,  or  literary  societies,  or  pub- 
lic cemeteries,  ten  cents. 

Power  of  attorney  to  sell  and  convey  real  estate,  or 
to  rent  or  lease  the  same,  to  receive  or  collect  rent,  to 
sell  or  transfer  any  stock,  bonds,  scrip,  or  for  the  col- 
lection of  any  dividends  or  interest  thereon,  or  to  per- 
form any  and  all  other  acts  not  hereinbefore  specified, 
twenty-five  cents;  provided,  that  no  stamps  shall  be  re- 
quired upon  any  papers  necessary  to  be  used  for  the 
collection  of  claims  from  the  United  States  for  pensions, 
back  pay,  bounty,  or  for  property  lost  in  the  military 
or  naval  service. 

Protest:  Upon  the  protest  of  every  note,  bill  of  ex- 
change, acceptance,  check  or  draft,  or  marine  protest, 
whether  protested  by  a  notary  public  or  by  any  other 
officer  who  may  be  authorized  by  the  law  of  any  state 
or  states  to  make  such  ftrotest,  twenty-five  cents. 

Warehouse  receipts  for  any  goods,  merchandise,  or 
property  of  any  kind  held  on  storage  in  any  public  or 
private  warehouse  or  yard,  except  receipts  for  agricul- 
tural products  deposited  by  the  actual  grower  thei'eof 
in  the  regular  course  of  trade  for  sale,  twenty-five  cents ; 
provi<led,  that  the  stamp  duties  imposed  by  the  forego- 
ing schedule  on  manifests,  bills  of  lading,  and  passage 
tickets  shall  not  apply  to  steamboats  or  other  vessels 
plying  between  ports  of  the  United  States  and  ports  in 
British  North  America.^^ 

28  tJ.  S.  Comp.  Stats.  1901,  vol.  2,  pp.  2286-2310. 


APPENDIX. 


REFERENCES  TO  STATUTES. 

September  30,  1791.     Revenue  stamps.     Ante,  §   1079. 

October  6,  1823.     Revenue  stamps.     Ante,  §  1080. 

January  21,  1824.  Supreme  court  authorized  in  the 
several  states.     Ante,  §  8. 

February  25,  1821.  Notaries — Jurisdiction  of.  Ante, 
§  6."  

June  22,  1821.     Revenue  stamps.     Ante,  §  1081. 

August  15,  1824.  Judicial  power  vested  in  Ksame  au- 
thorities as  previously.     Ante,  §  9. 

October  2,  1824.     Revenue  stamps.     Ante,   §   1082. 

October  4,  1824.  Supreme,  circuit  and  district  courts — 
Composed  of.     Ante,  §  10. 

March  24,  1825.     Revenue  stamps.     Ante,  §  1083. 

July  14,  1825.     Judges  of  responsibility.     Ante,  §  11. 

May  31,  1827.  Registration  of  title  issued  to  Austin, 
Colony  — Revenue  stamps.     Ante,  §  3. 

September  4,  1827.     Revenue  stamps.     Ante,  §  1085. 

February  9,  1828.     Revenue  stamps.     Ante,  §  1086. 

February  9,  1828.  New  settlers  exempt  from  stamp 
laws.     Ante,  §   1086. 

March  4,  1834.  Alcaldes  and  primary  judges.  Ante, 
§  12. 

April  18,  1834.  Judges — Assisting  witnesses — No- 
tary public.     Ante,   §   13. 

April  27,  1834.     Courts  of  justice.     Ante,  §  14. 

November  13,  1835,  and  :\rarch  1,  1836.  Judiciary  to 
consist  of  first  and  second  judges  and  notary — 
Revenue  stamps.     Ante,  §  16, 

January  19,  1836.  Notarial  acts,  first  judge,  alcaldes 
or  commissarios,  primary  judges,  justices  of  the 
peace.     Ante,  §§  17-21. 

(45.5) 


456  APPENDIX. 

March  17,  1836.     Constitution  of  tlie  Republic  of  Texas. 
— Former  laws  j*emain  in  force — Judges  to  remain 
in  office.     Ante,  §  59G. 
December    20,    1836.     County    clerk,    pro    tem    clerk. 
Ante,  §  600. 

Sec.  12.     Seal  of  county  court.     Ante,  §  503. 
Sec.  33.     Judge   of  first   instance   to   deposit 

records — County  clerk.      Ante,  §  24. 
Sec.  35.     County  clerks  to  be  recorders,  proof 

by  one  witness.     Ante,  §  42. 
Sec.  38.     Proof     by     two     subscribing     wit- 
nesses— Handwriting  proven  before  county 
judge  or  clerk.     Ante,  §  601. 
Sec.  37.     Titles    to    be    recorded    in    county 
clerk's    oface    within    twelve    months    from 
April  1,  1837.     Ante,  §  32. 
Sec.  34.     Chief  justices  made  ex-ofidcio  nota- 
ries public.     Ante,  §  597. 
Sec.  41.     Common-law      rules      of      evidence 
adopted.     1  L.  T.  1216. 
June  12,  1837.     Chief  and  associate  justices  to  be  ex- 

officio  notaries.     Ante,  §  603. 
November  16,  1837.     Appointment  of  notaries  public — 

Seal.     1  L.  T.  1358 ;  ante,  §  604. 
December  21,  1837.     Deputy  county  clerks  authorized. 

Ante,  §  605. 
May  10,  1838.     Repeals  part  of  section  which  requires 
recording  before  the  first   of  April,  1836.     1   L.  T. 
1478. 
May  15,  1838.    Notaries — Appointment  of.    Ante,  §  607. 
January  19,  1839.     Proof  by  subscribing  witnesses  be- 
fore  chief  justice   or   clerk   of  the   county   court. 
Ante,  §  608. 

Sec.  2.     Copies  of  deeds  in  public  archives  ad- 
mitted to  record.     2  L.  T.  52. 
January  26,  1839.     Chief  justices  of  counties  to  act  as 
notary  public.     Ante,  §  610. 


APPENDIX.  457 

January  18,  1840.     Statute  of  frauds  enacted.     2  L.  T. 

203. 
February  5,  1840.     Conveyance  to  be  in  writing,  sealed 
and  delivered;  to  be  acknowledged  or  proven  by 
two  witnesses.     2  L'.  T.  327 ;  ante,  §  611. 

Sec.  2.     Agreement  made  in  consideration  of 
marriage  to  be  acknowledged  or  proven  by 
two  witnesses.     2  L.  T.  327 ;  ante,  §  612. 
Sec.  5.     County  clerks  and  their  deputies  to 
take  acknowiedgments  and  proof  of  record 
of  instruments  upon  certificate  of  district 
judge,  chief  justice  or  notary  public  under 
seal.     2  L.  T.  328;  ante,  §  613. 
Sec.  6.     Two  justices  of  the  peace  authorized 
to  take  acknowledgments.     Ante,  §  614. 
March  16,  1840.     Civil  law  abolished  and  common  law 

substituted.     2  L.  T.  777. 
December  24,  1840.     Validates  acts  of  Samuel  Todd, 
county  clerk  of  Shelby  county.     2  L.  T.  613;  ante, 
§  1060. 
January  22,  1841.     Associate  justices  authorized  to  act 
in  absence    of  chief    justice.     2  L.  T.  532;    ante, 
§  616. 
February  3,   1841.     Acknowledgment  of  husband  and 
wife  authorized  before  district  judge,  and  chief  jus- 
tice of  county  court,    2  L.  T.  608 ;  ante,  §  617. 
February  5,  1841.     Validates  registration  before  any 
chief  justice  or  notary  public  or  county  clerk  or 
proof  by  one  or  more  subscribing  witnesses.     Ante, 
§  619. 

Sec.  21.     Of  said  act  authorizes  acknowledg- 
ments both  within  and  without  the  state  of 
Texas  before  certain  officers.     2  L.  T.  701; 
ante,  §  620. 
February  5,  1844.     Notaries  public — Appointment  of. 

2  L.  T.  1017 ;  ante,  §  792. 
January  10,  1845.     Notaries  public — Appointment  of — 
Seal.     2  L.  T.  1059. 


458  APPENDIX. 

July  4,  1845.     United  States  consvitution  adopted.     2 

L.  T.  1228. 
August  27,  1845.     Constitution  of  tho  state  of  Texas  au- 
thorizes appointment  of  notaries.     2  L.   T.   1290; 
ante,  §  792. 
April  29,  1846.     Acknowledgment  of  married  women  to 
schedule  of  her  property.     2  L.  T.  1 1:59 ;  ante,  §  635. 
April  30,  1846.     Notaries  public — Appointment  of.     2 

L.  T.  1466 ;  ante,  §  795. 
April  30,  1846.     Married  women — Acknowledgment  be- 
fore judge  of  the  supreme  court  or  notary  public. 
Ante,  §§  637-642. 

Sec.  2.     Authorized  acknowledgment  without 
state  before  certain  ofldcers,  repeals  former 
laws.     2  L.  T.  1462 ;  ante,  §  637. 
May  2,  1846.     Chief  justices  of  county  couris  — Acts  of 

validated.     Ante,  §  871 ;  2  L.  T.  1471. 
May  8,  1846.     Commissioners  of  deeds  appointed.     2  L. 

T.  1493 ;  ante,  §  729. 
May  11,  1846.     Seals  of  district  courts — Ajpointment 

of  deputies.     2  L.  T.  1508;  arte,  §  901. 
May  12,  1846.     Supreme  courts  to  consist  of  chief  jus- 
tice and  two  justices.     2  L.  T.  1555. 
May  12,  1846.     County  clerks  made  recorders—  Seai^. 
2  L.  T.  1544;  ante,  §§  644,  645. 

Sec.  7.     Acknowledgment  provided  for.     2  L. 

T.  1543. 
Sec.  8.     Proof  of  instrument  by  one  or  more  of 

the  subscribing  witnesses.  2  L.  T.  1544. 
Sec.  10.  Acknowledgment  or  proof  by  a  per- 
son unknown  to  officer.  2  L.  T.  1544. 
Sec.  11.  Proof  or  acknowledgment  shall  be 
made  within  the  state  before  some  notary 
public,  clerk  of  the  county  court  without  the 
state  and  within  the  United  States  or  their 
territories  before  some  judge  of  a  court  of 
record   having  a   seal.     When   without   the 


APPENDIX.  459 

United  States  before  some  public  minister, 
charge   d'affaires   or   consul   of   the   United 
States.     2  L.  T.  1544. 
May  13,  1846.     Notaries  public— Appointment  author- 
ized—Seal— Acknowledgment  of  married  women  to 
be  taken— Acknowledgment  received  as  evidence. 
Ante,  §  643. 
May  13,  1846.     County  court  organized— County  clerks 
may  appoint  a  deputy— Seal— Two  county  commis- 
sioners may  act  as  chief  justices.     2  L.  T.  1640; 
ante,  §§  657-667. 
March  16,  1848.     County  clerks  may  have  deputies.     S 

L.  T.  128 ;  ante,  §  668. 
May  16,  1848.     County  court  composed  of  one  chief  jus- 
tice—Seal— Clerk  pro  tem— Two  county  commis- 
sioners to  perform  duties  of  chief  justice.     3  L.  T. 
117;  ante,  §§  669-680. 

Sec.  27.     Chief  justices   of  county   court   au- 
thorized to  take  acknowledgments  of  all  in- 
struments including  those  of  married  women. 
3  L.  T.  449 ;  ante,  §  674. 
December  IS,  1849.     County  clerks  authorized  to  take 
acknowledgments  of  married  women.     3  L.  T.  449 ; 
ante,  §  681. 
December  29,  1849.     County  commissioners  to  perform 

duties  of  chief  justices.     3  L.  T.  459. 
November  24,  1851.     Seals  of  Galveston  county  vali- 
dated.    3  L.  T.  881 ;  ante,  §  1027. 
February  9,  1856.     Deputy  county  clerks  may  take  ac- 
knowledgments  of   mari'ied   women   and   previous 
acts  validated.     Ante,  §  683;  4  L.  T,  262. 
August  19,  1856.     Official  acts  of  McMicken  as  deputy 
county  clerk  of  Polk  county  validated.     4  L.  T.  459 ; 
ante,  §  1061. 
August  30,  1856.     Notarial  acts  of  Fearris  validated. 

4  L.  T.  503;  ante,  §  1062. 
February  2,  1858.     Scrolls  and  seals  dispensed  with.    4 
L.  T.  968;  ante,  §§  505,  506. 


460  APPENDIX. 

February  9,  18G0.  Validates  certain  acknowledgments 
and  registrations.     4  L.  T.  1437 ;  ante,  §  1029. 

^[arcli,  1861.     Constitution  adopted.     5  L.  T.  3. 

April  G,  1861.  Provides  for  the  authentication  of  in- 
struments for  record.     5  L.  T.  373;  ante,  §  686. 

December  31,  1861.  Commissioners  of  deeds  author- 
ized.    5  L.  T.  465 ;  ante,  §  741. 

January  14,  1862.  Manner  of  authenticating  instru- 
ments provided  for — Eepeals  other  laws  and  vali- 
dates acts  of  deputy  county  clerks.  5  L.  T.  501; 
ante,  §  688. 

March  5,  1863.  Notaries  public — Appointment  author- 
ized.    5  L.  T.  602 ;  ante,  §  801. 

May  6,  1863.     Proof  of  handwriting  or  mark  of  grantor. 
^  5  L.  T.  614 ;  ante,  §  428. 

June  30,  1864.     Revenue  stamps.     Ante,  §  1088. 

July  13,  1866.     Revenue  stamps.     Ante,  §  1088. 

October  8,  1866.  Constitution  adopted.  5  L.  T.  857; 
ante,  §  689. 

November  13, 1866.  Provides  for  the  manner  of  authen- 
ticating instruments  for  record.  5  L.  T.  1128; 
ante,  §  691. 

September,  1869.  Constitution  of  the  state  of  Texas — 
District  clerk  shall  be  recorder  of  deeds.  7  L.  T. 
412 ;  ante,  §  693. 

Sec.  20.  Of  same — Justices  of  the  peace  shall 
be  commissioned  notaries  public.  7  L.  T. 
414 ;  ante,  §  694. 

August  8,  1870.  District  clerks,  their  deputies  and  no- 
taries authorized  to  take  acknowledgments.  6  L. 
T.  223 ;  ante,  §  695. 

August  13,  1870.  Justices  of  the  peace  authorized  to 
act  as  notaries.     6  L.  T.  278 ;  ante,  §  697. 

Sec.  29.  Deputies  of  justices  of  peace  author- 
ized to  act  as  notaries  public.  6  L.  T.  278; 
ante,  §  698. 

August  13,  1870.  Validates  certain  acts  of  county 
judges.     Ante,  §  701. 


APPENDIX.  461 

May  6,  1871.     Officers  authorized  to  take  acknowledg- 
ments, etc. 
May  18,  1871.     Validates  act  of  McCrary  and  Washing- 
ton as  justices  of  peace  of  Bowie  county.     6  L.  T. 

998 ;  ante,  §  1063. 
May  25,  1871.     Validates  acts  of  I.  H.  Steen,  district 

clerk  of  Hamilton  county,  also  his  acts  as  justice 

of  peace.     6  L.  T.  1033;  ante,  §  1064. 
May  31, 1871.     Validates  acts  of  I.  A.  Lee,  justice  of  the 

peace    of    Coryell    county.     6    L.    T.  1010;    ante, 

§  1066. 
May  31,  1871.     Repeals  act  authorizing  the  appoint- 
ment of  deputies  justice  of  the  peace.     6  L.  T.  1036; 

ante,  §  704. 
December  2,  1871.     Acknowledgment  by  corporations. 

Articles  676,  677,  Rev.  Stats.   1895 ;  ante,  §  553. 
April  28,  1873.     Scrolls  and  private  seals  abolished.     7 

L.  T.  53;  ante,  §§  505,  506. 
April  14,  1874.     Validates  acts  of  clerks  of  the  district 

court  acting  as  jtistices  of  the  peace.     8  L.  T.  94; 

ante,  §  1040. 
April  20,  1874.     District  clerks  elected  justices  of  the 

peace — Authorized  to  qualify.     8  L.  T.  Ill;  ante, 

§  706. 
May  23,  1874.     Bill  of  sale  of  cattle  acknowledged.     8 

L.  T.  36. 
April    27,    1874.     Validates    certain    acknowledgments 

taken  without  the  state  of  Texas.     8  L.  T.  154 ;  ante, 

§  1041. 
May  2,  1874.     Validates  certain  acts  of  notaries.     8  L. 

T.  198 ;  ante,  §  1045. 
March  13,  1875.     Validates  acts  of  C.  L.  Thirman,  as 

notary  public    of  Victoria  county.     8  L.   T.   573; 

ante,  §  1067. 
November  24,  1875.     Constitution  of  the  state  of  Texas. 

— Notaries  public,   county   court,   justices  of  the 

peace.     8  L.  T.  800 ;  ante,  §  708. 


462  APPENDIX. 

May  25,  1876.  County  clerks  authorized  to  authenticate 
instruments  and  appoint  deputies.  8  L.  T.  840; 
ante,  §  710. 

June  2,  1876.  County  judges  required  to  perform  du- 
ties of  chief  justices.     8  L,  T.  8")0. 

June  16, 1876.  County  court  organized — Seal  validates. 
8  L.  T.  859,  860 ;  ante,  §  712. 

June  24,  1876.  Notaries  public — ^Appointment  of.  8 
L.  T.  806 ;  ante,  §  813. 

June  26,  1876.  Abolishes  office  of  notary  public  as  it 
existed  prior  to  the  adoption  of  the  constitution  of 
1876.     Ante,  §  813a. 

July  28, 1876.  Validates  certain  certificates  of  acknowl- 
edgment of  married  women.  8  L.  T.  897;  ante,, 
§  1049. 

July  28,  1876.  Penalty  for  fraudulent  acknowledg- 
ments.    8  L.  T.  896. 

August  17,  1876.  Justices  commissioned  notaries, 
^  Ante,  §  815. 

August  18,  1876.  Seal  of  county  court.  8  L.  T.  1008; 
ante,  §  523. 

March  13,  1879.  Office  of  district  and  county  clerk  may 
both  be  held  by  one  person — validates  certain  acts. 

8  L.  T.  1334;  ante,   §  990. 

April  11,  1879.     Notaries  public — Appointment  of.     8 

L.  T.  1389 ;  ante,  §  816. 
April  18,  1879.     Validates  certain  seals  of  notaries.     8 
L.  T.  1408;  ante,  §  1052. 

Arts.   4305  to  4358,   inclusive.  Rev.   Stats,   of 
1879,  provided  for  the  manner  of  authenticat- 
ing instruments  for  record,  etc. 
March  18,  1881.     Validates  certain  notarial  acts  where 
defective  seal  was  used.     9  L.  T.  142 ;  ante,  §  1058. 
April  1,  1881.     Notarial  seal — ^Notaries  authorized  to 
take  acknowledgments  of  married  women.     9  L.  T. 
187;  ante,  §  819. 
February  20,  1885.     Notaries  public — Appointment  of. 

9  L.  T.  37 ;  ante,  §  820. 


APPENDIX.  463 

April     1,     1885.     Notaries     public — Appointment     of. 

Ante,  §  822. 
April  1,  1887.     Validates  official  act  of  Wm.  Veal,  as 

notary  public  of  Stevens  county.     Ante,  §  1068;  9 

L.  T.  912. 
April  5,  1889.     Certain  seals  of  notary  public  validated. 

9  L.  T.  1149;  ante,   §  1059. 
June  13,  1898.     Revenue  stamps.     Ante,  §  1089. 
]May  9,  1895.     Revised  statutes. 
April  1,  1903.     Notaries.     Ante,  §  824a. 
April  5,  1905.     Validates.     Ante,  §  1059a. 


INDEX. 


[References  are  to  Sections.] 
ABANDONMENT  OR  INSANITY  OF  HUSBAND,  EFFECT  OF,  273. 
ACKNOWLEDGMENT     AND     PEOOF.     See     Authentication;     also 
chapter   3,   51-67. 
effect  prior  to  1836,  4. 

subsequent   to   December   20,   1836,   63,   53. 
execution  not  proven  by  certificate  of,  64. 
wife's    defective     acknowledgment     harmless    on     husband's 
deed,  65. 
how  shown   or  proven,   67. 
nature  of,  51,  54. 
necessity  of,  54. 

not  necessary  between  the  parties  when,  55. 
not  necessary  in  case  of  assignment,  56. 
not  necessary  in  case  of  railroad  company,  when,  57. 
chattel  mortgage  need  not  be  acknowledged,  when,  58. 
essential  to  wife's  deed,  59. 
wife  abandoned  by  husband,   60. 
husband  insane,  60. 
wife's  oral   agreement,  61. 
in  ease  of  ancient  instruments,  62. 
notice,  66. 
object  of,  53. 
origin,  54. 

certificate  of  single  acknowledgments,  124-237. 
certificate  of  married  woman's,  274-348b. 
of  single  person  prior  to  1837,  2-4. 

subsequent   to   1837,   51-110. 
of  married  women  prior  to  1841,  238-242. 

after  February  3,  1841,  243-273a. 
how  made  and   taken,  68-110. 

admission    of   execution   in    officer's   presence   is   not   an   ac- 
knowledgment, 105,  154,  155. 
curing  defective,  chapter  28,  992-1068. 
pleading.  1069-1072. 
personal  to  officer,  302. 
pleaded  how,  1069-1072. 
place   of  taking,   111-115. 

30  (465) 


4(36  INDEX. 

ACKNOWLEDGMENT   AND   PROOF   (Continuea). 
time  of  taking,   116-123. 
of  officer's  own  signature  sufficient,  45. 
made  how.     See  How  Made  and  Taken,  68-110. 
taken   how.     See  How  Made  and   Taken,   68-110. 
through  telephone,  106. 

relates  back  to  tim^  of  execution  of  deed  when,  119,  120. 
invalid  at  time  made  not  covered  by  change  of  law,  123. 
certified  by  county  clerk,  42-48. 
who  may  make,  544-572. 
who  may  take  generally,  573-595. 

statutes  generally,  596-717. 

without  the  state  but  within  United  States,  718-755. 

without  the  United  States,   756-767. 

officers  authorized,  768-991. 
acknowledged  execution  to  officer,  154. 

casual   admission  in   officer's  presence  insufficient,   155. 

sufficiently  shown,  156. 
See  Conclusiveness  of   Certificate  of  Wife's  Acknowledgment. 

ACKNOWLEDGMENT      AND      CONVEYANCE      BY      MAREIED 

WOMEN    PRIOR   TO     THE   ACT   OF    FEBRUARY   3,   1841, 

238-242. 
not  required  as  at  present,  238. 
consent  of  husband  required  but   not   separate   acknowledgment, 

239. 
wife's  acknowledgment  taken  in  same  manner  as  single  person's, 

240. 
after   adoption    of   common   law,   no   provision   made   until    1841, 

241. 
convey  her  personal  property  without  acknowledgment,  242. 

ACKNOWLEDGMENT  BY  MARRIED  WOMEN  AFTER  THE  ACT 

OF  FEBRUARY  3,  1841. 
the     acknowledgment,     not    the     signature,    is    deed    of     married 

woman,  247. 
held,   that    deed   without   proper   certificate    of     acknowledgment 

void,  248,  295. 
deed  properly   acknowledged   but   defectively   certified  not   void, 

249. 

it  might  be  reacknowledged,  250. 
cured  by  estoppel,  251. 
validated  by  statute,   252. 
corrected  by  action  at  law,  253,  254. 
cannot  be  proven  by  subscribing  witnesses,  275,  355. 
acknowledgment  of  wife   defectively  certified  void  as  to  vested 

rights,  255. 
acknowledgment  of  wife  improperly  taken  but  properly  certified 
valid,  when,  256. 


INDEX.  467 

ACKNOWLEDGMENT  BY  MAERIED  WOMEN  AFTER  THE  ACT 
OF  FEBEUARY   3,   1841    (Continued). 
requirements  of  valid  acknowledgment,  257-259. 
privy  examination  essential,  257,  258. 

prior  to  act  of  February  3,  1841,  259. 
explanation  essential,  261. 

by  interpreter  valid,  263. 

if  she  knew  contents  of  deed,  264. 

when  she  has  been  abandoned  by  husband  or  he  insane, 

265. 
explanation  where  reference  is  made  to  another  instru- 
ment, 265. 
not  necessary  in  case  of  a  widow's  deed,  265. 
free  from  compulsion,  266. 
right  to  retract,  267. 
grantor  known  or  proved  to  officer,  268. 
extent  of  acquaintance,  269. 
time — may  be  taken   at   different   times — one   valid  though   other 

invalid,  270,  116-123. 
on  legal  holiday  valid,  271. 

husband  and  wife  may  acknowledge  different  instruments,  244. 
acknowledgment  to  receipt  of  married  woman  not  required,  272. 
when  abandoned  by  husband  or  he  is  insane,  etc.,  she  may  con- 
vey as  single  person,  273. 
schedule  of  wife's  separate  acknowledgment  how,  273a. 
certificate  must  certify  what,  289-301. 
separate  and  privy  examination,  290. 
"separate"  instead  of  "privily,"  291. 
"apart  from  her  husband"  sufficient,  292. 
explanation,  293. 

omission  "explained  to  her"  fatal.  294. 
wife  otherwise  knew  contents  of  deed,  295. 
"explained"   equivalent  to   "fully  explained,"  296. 
certificate  not   defective  for  failing  to  show  that   deed  was 

shown  to  wife,  297. 
free  from  compulsion,  298. 

free  instead  of  willingly,  299. 
retract,  267,  270,  300. 
known  to  me,  301. 
certificate  of  wife's  acknowledgment,  274-348b. 

ACKNO^VT.EDGMENT  AND  PROOF  WTTTIOTTT  THE  STATE,  528- 
543. 
generally — must   bo   taken    in   compliance   with   Texas  laws,   528. 
foreign   language,   529. 

form  and  requirements  of  certificates  and  acknowledgments,  530. 
authority  shown  by  certificate  of  conformity  when,  531. 
official  character  shown  by  certificate,  532. 


468  INDEX. 

ACKNOWLEDGMENT     AND     PROOF     WITHOUT     THE     STATE 
(Continued), 
certificate  must  show  court    is  court  of  record,  533. 
other  rule  in  Illinois,  534. 

judges  of  courts  of  record  no  authority  after,  1879,  535. 
authorized  without  the  state,  when,  536-540,  542. 
as  to  acknowledgments  of  married  women,  537. 
certificates  of  conformity,  538. 
continued  in  force,  539. 
acknowledgments   of   married  women  by  act   of  April   30,   1846, 
540. 

repealed  former  laws,  541. 

certificate  of  conformity  under  above  act,  542. 
remained  in  force,  542. 
authorization  continued,  543. 
for  authority  of  officers  without  state,  and  within  United  States, 

718-755. 
for  authority  of   officers  without  United  States,  756-767. 
ACQUAINTANCE   WITH   GRANTOE   SHOWN,   142-145. 
ADMISSION   OF   A    MARRIED    WOMAN,   not   admissible   to   show 

her  acknowledgment,  174,  284. 
AGENT  OR  ATTORNEY,  may  acknowledge  and  prove,  when,  547. 
of  married  woman,   548. 
firm  as  attorney  in  fact,  549. 
irregular  certificate  of,  550. 
married  woman  as  agent,  566. 
wife 's   conveyance  by,   244. 

not  authorized  to  take  acknowledgments  and  proof  when,  579-580. 
ALTERATIONS,   3    (g). 
AMENDMENT  of  certificate,  191,  282,  992-1068. 

of  repealed  statute,   692. 
ANTIQUITY  OF  AUTHENTIC  INSTRUMENTS,  3    (h). 
ARCHIVES,  41,  23,  37-40,  198-200. 

certificate  by  translator  sufficient  when,  41. 
ASSISTING  WITNESSES,  2,  3   (f),  13,  15,  20,  354-391. 

prior  to  1836,  3  (f),  350-353. 
ATTESTING  WITNESSES.     See  Witnesses. 
AUSTIN  COLONY,  3   (i). 

AUTHENTICATION,  and  record  prior  to  1837,  3. 
necessity  of,   4,   36. 
by  authorized  officers,  3    (a),  22. 

might  be  proven  by  secondary  evidence  when,  3   (h). 
Spanish  language  to  be  used,  3   (b). 
stamped  paper  to  be  used,  3   (c). 

seals,  signets,  rubrics  and  notarial  flourishes,  3   (d). 
signatures,   dates,  terms,   etc.,   3    (e). 
assisting  witnesses,  3    (f). 


INDEX.  469 

AUTHENTICATION  (Continued). 

alterations,  etc.,  3  (g). 

antiquity  of  authentic  instruments^  3   (h). 

presumptions,  3  (h). 

proof,  3  (h). 

method  for  Austin  colony,  3  (i). 

might  be  proper  archive  though  not  authentic,  4,  41. 

custom,  3  (j). 

effect  of,  4,  35,  36. 
AUTHENTIC  INSTEUMENTS,  2,  4,  35. 
AUTHORIZED   OFFICERS   PRIOR   TO   1836,   3    (a),   5-22. 
AUTHORITY  OF  OFFICERS,  immaterial  when,  22. 

presumption  as  to  authority,  3   (h),  593,  114,  47. 

how  shown,  531-533. 

want  of  authority  cannot  be  shown  by  parol,  183. 
AYUNTAMIENTO,   12,   27. 

BLANKS  IN  AUTHENTIC  INSTRUMENTS,  3   (g). 
BURDEN  OF  PROOF,  186-189. 

where  seeking  to  impeach  certificate,  186,  187. 

in  cases  of  equitable  titles,  188. 

in  case  of  legal  titles,  189. 
BYSTANDER,  not  authorized  to  prove  deed  when,  378,  391. 

CASUAL  ADMISSION  IN  OFFICER'S  PRESENCE,  155. 
CERTIFICATE,  by  translator  sufficient  when,  41. 
CERTIFICATE  OF  ACKNOWLEDGMENT,  SINGLE,  124-127. 

See  Certificate  of  Married  Woman's  Acknowledgment,  274-348b. 

language,  125. 

time  of  makingr  certificate,  326,  127. 

on   Sunday  or  legal  holiday  valid,   128. 

adopting  foi-m  invalid   at  time  used,  129. 

venue,  130. 

date,  131. 

signature,  132,  203. 

oflScial  character,  must  be  shown,  133. 

cannot   be    shown    by   reference    to    record    but    may   be    by 

reference  to  deed,  135. 
certificate    not    showing    official    character    aided    by    record 

when,  134. 
how  shown,  133. 

cannot  be  shown  by  extrinsic  evidence,  135a. 
official    character   shown   by   initials   and   caption   of   certifi- 
cate, 136. 
court   of   record    is   sliown    whore    certificate   shows    that    the 
court  had  a  clerk  and  seal,  133. 


470  INDEX. 

CEETIFICATE    OF    ACKNOWLEDGMENT,    SINGLE    (Continued), 
must  certify  what — genei'ally,  137-138. 

grantor  known  or  proved  to  officer,  139. 

known  by  introduction  sufficient,   140. 

omission  of  "known  to  me"  fatal,  when,  141. 

acquaintance  sufficiently  shown,  142-145. 

"proved  to  me  on  oath  of" — surplusage,  146. 

identity  of  grantor  and  person  acknowledging  deed  must  ap- 
pear, 147. 

omission  of  grantor 's  name  in  certificate,  148. 

variance  in  names,  149. 

parol  evidence  to  show  identity,  150. 

variance  immaterial  when,   151. 

middle  initial  immaterial,   152. 

omission  of  "to  be  the  person,"  etc.,  153. 
acknowledged  execution  to  officer,   154. 

casual  admission  in  officer's  presence  insufficient,   155. 

sufficiently  shown,  156. 
sufficient   certification,   157-163. 

clerical  errors  not  fatal,  161. 

"the"  instead  of  "they,"  162. 

"with"  for  "without"  and  other  mistakes,  163. 
insufficient  certification,  164-166. 

"the  within  instrument  as  duly  proved"  insufficient,  164. 

"he"  for  "they"  defective,  165. 

omission  of  "they"  defective,  166. 
surplusage,  167. 

unnecessary  words  generally,  167. 

unnecessary   words,    168. 

uncanceled  words  in  printed  certificate,  169. 

name  out  of  place,  170. 
errors  and  omissions  not  fatal  when,  171,  172. 

fatal  errors  and  omissions,   173. 
parol  evidence,  174-185. 

to   aid   certificate,   not   admissible,   when,   174. 

to  aid  certificate  admissible  when,  176. 

to  correct  defective  certificate  of  valid  acknowledgment,  177- 
179. 

limitation,  ISO. 

where  acknowledgment  itself  is  defective,  evidence  inadmis- 
sible, 181. 

parol  evidence  to  impeach  certificate  inadmissible  when,  182. 

want  of  capacity  in  officer  cannot  be  shown,  183. 

parol  evidence  to  impeach  certificate  admissible  when,  184. 

may  show  no  acknowledgment  made,  184. 

admissible  where  purchaser  is  chargeable  with  notice,  185. 


INDEX.  471 

CERTIFICATE    OF    ACKNOWLEDGMENT,    SINGLE    (Continued), 
burden  of  proof,  186-189. 

where  seekin.^  to  impoafh  certificate.  186.  187. 
in   case  of   equitable  titles,   188. 
in  case  of  legal  titles,  189. 
secondary  evidence  admissible  when,  190. 
amendment  of  certificate,  191. 
evidence  of  what,  194,  195. 

not  evidence  of  execution  of  deed,  195. 

admissible  to  prove  protest,  196. 

validates  deed,  197. 

protocols  and  copies  admissible  on  certificate  when,  198. 

copies  of  archives  admissible,  199. 

copies  from  foreign  jurisdiction  not  admissible  when,  200. 

after  act  of  December  20,  1836,  proof  of  execution  required, 

201. 
copies   filed   prior   to   1837   admissible  when,   202,   203. 
copy  of   deed   not  properly  acknowledged   not   admissible   as 
ancient  deed,  204. 
certificate   of    acknowledgment    proven   by    secondary   evidence, 

205. 
certificate  of  magistracy  and  conformity,  206-209. 
required  in  Texas  when,  207. 
remained  in  force  how  long,  208. 
not  required  thereafter,  209. 
foreign  officer  must  be  authorized  by  laws  of  Texas,  210. 
conclusiveness  of  certificate,  183,  211-214. 
conclusive  when,  211. 
as  to  capacity  of  officer,  etc.,  183,  212. 

not  where  grantor  did  not  attempt  to  acknowledge  deed,  213. 
nor  unless  grantee  is  innocent  purchaser  for  value,  214. 
presumptions,  215. 
notice,  66,  216. 

form  and  requirements  of  certificates  generally,  217-242. 
must  comply  with  law  at  date  of  certificate,  217. 
substantial  compliance  with  statutes  required,  218. 
form    and  requirements   of    single    acknowledgments    under   the 

different  statutes,  219-237. 
form  of  single  certificate,  102. 

of  certificate  of  wife's  acknowledgment,  104,  286. 
of  certificate  of  proof  by  subscribing  witnesses,  435,  439,  407. 
of  certificate  of  proof  by  proof  of  handwriting,  453,  454. 
CEETIFTCATE    OF    ACKNOWLEDGMENTS    OF    MARRIED  WO- 
MEN.    See  Certificate   of   Acknowledgment,  Single,   124-237. 
amendment  of  certificate,  282.  992-997. 
curing  defective  certificate,  992-1068. 


472  INDEX. 

CERTIFICATE,        OF      ACKNOWiLEDGMENTS      OF      MARRIED 
WOMEN      (Continued), 
conclusiveness  of  certificate  of  wife's  acknowledgment,  319. 
same  strictness  does  not  apply  to  wife  as  to  husband,  320. 
cannot  show  want  of  capacity  in  officer,  etc.,  321. 
officer  cannot  explain  certificate,  but  may  prove  acknowledg- 
ment properly  taken,  322. 
may  be  avoided  by  her  when,  323. 
certificate  of  acknowledgment  essential  and  conclusive,  275, 

276. 
conclusive  if  grantee  innocent  purchaser  for  value,  276. 
not  conclusive  if  grantee  is  chargeable  with  notice,  277. 
not  conclusive  if  grantor  did  not  acknowledge,  278. 
defective  certificate  does  not  render  deed  void  when,  279. 
defective  certificate   of  valid   acknowledgment,   318. 
deed  of  wife  incomplete  without  certificate,  280,  281. 
equivalent  expressions,  312. 
estoppel  and  equities,  313-317. 
in  case  of  partition,  314. 
where  wife's  land  is  released,  315. 
where  fraud  is  practiced  by  wife,  316. 
not  estopped  simply  because  she  received  the  benefits,  317. 
certificate  proven  how,  283-286. 
parol  evidence,  284,  285. 
form  of  certificate  of  married  woman's  acknowledgment,  104,  286, 

287. 
substantial  compliance  with  statute  necessary,  287. 
may  be  invalid  as  to  husband  but  valid  as  to  wife,  288. 
must  certify  what,  289-306. 

separate  and  privy  examination,  290. 

"separate"   instead   of  "privily,"   291. 
"apart  from  her  husband"  sufficient,  292. 
explanation,  293-297. 

omission   "explained,  to  her"   fatal,   294. 
wife  otherwise  knew  contents  of  deed,  295. 
"explained"  equivalent  to  "fully  explained,"  296. 
certificate  not   defective   for  failing  to  show  that   deed 
was   shown  to  wife,   297. 
free  from  compulsion,  208. 

free  instead  of  willingly,  299. 
retract,  300,  267,  270. 
"known  to  me,"  301. 
acknowledgment    must  be  personal  to  officer,  302,  303. 

not  required  prior  to  1841,  274. 
official  character  must  be  shovs^n,  304. 
seal  must  be  attached,  305. 
signature  of  officer  must  be  appended,  306. 


INDEX.  473 

CERTIFICATE        OF      ACKX0W1.EDGMENTS      OF      MAERIED 
WOMEN      (Continued), 
identity  of  grantor  and  person  acknowledging  deed,  308. 
omissions  and  errors,  307,   309. 

error  clearly  clerical  not  fatal,  310. 
material  omissions  fatal,  311. 
presumption  is  that  certificate  recites  the  facts,  324. 
proven  how,  283-286. 

See  Statutory  Enactments,   325-348b. 
CERTIFICATE    OF    CONFORMITY    REQUIRED    WHEN,  531,  538, 

542. 
CERTIFICATES,  OF  PROOF  BY  SUBSCRIBING  WITNESSES,  893- 
439. 
witness  known,  393-394. 
that  witness  was  sworn,  395. 

witness   saw   execution,   or   heard   acknowledgment    and   was   re- 
quested to  sign,   396,   397. 

idem — rule  prior  and  subsequent  to  1846,  397. 
where  witness'  name  appears  on  deed  it  is  not  necessary  to  certify 

that  he  was  a  subscribing  witness,  398. 
alternative  certificate.  399. 
irregular  certificate,  400. 
official  character,  401. 
seal,  402. 
signature,  403. 

purposes  and  considerations,  etc.,  404. 
execute  instead  of  subscribe,  etc.,  405. 

other  requirements  and  force  and  effect  of  certificates,  406. 
form  of  certificate  of  proof,  435,  407-439. 
CHANGE    OF  LAW    WILE    NOT    AFFECT    VALIDITY    OF   AC- 

KNOWIjEDGMENT,  1014. 
CHIEF  AND  ASSOCIATE  JUSTTCES,  authorized  when,  852-885. 
ex-oflficio  notaries,  49,  597. 

not  authorized  to  act  without  their  counties,  when,  113. 
CLERICAL  ERRORS,  161,  309-311. 
COMMISSARIES.  15. 

commissioner  appointed  to  issue  titles  was  the  proper  person  to 

acknowledge  testimony  of  same,  571. 
common-law  requirements  as  to  conveyances,  241. 
COMPLIANCE    WITH    STATUTE,    SUBSTANTIAL    SUFFICIENT, 

287,  408,  452. 
COMPULSION,  FREEDOM  OF  WIFE  FROM,  266,  298,  299. 
CONCLUSIVENESS  OF  CERTIFICATE,  211. 
conclusive  when,  211. 
as  to  capacity  of  officer,  etc.,  212. 

not  where  grantor  did  not  attempt  to  acknowledge  deed,  213. 
nor  iinless  grantee  is  innocent  purchaser  for  value,  214. 


474  INDEX. 

CONCLUSIVENESS  OF    CERTIFirATE    OF   WIFE'S    ACKNOWL- 
EDGMENT. 275-278,  819. 
not  whore  wife  is  rleceived  by  the  amount  of  tlie  consideration 

in   the   deed,   323. 
same  strictness  does  not  apply  to  wife  as  to  husband,  320. 
cannot   show  want  of  capacity  in   officer,   etc.,  321. 
officer  cannot  explain  certificate,  but  may  prove  acknowledgment 

properly  taken,  322. 
may  be  avoided  by  her  when,  323. 
CONFORMITY,  CEETIFICATES  OF,  REQUIRED  WHEN,  531,  538, 

542. 
CONSTITUTIONS  OF  TEXAS: 
of  March  17.  1836,  21. 
of  August  27.  1845,  794. 
of  March  2,  1861.     See  Appendix, 
of  October  8,  1866,  689. 
of  September,  1869,  693. 
of  November  24,  1875,  708. 
CONSTITUTIONiALITY   OF   LAWS— object   expressed   in   title,   666, 
676i. 
object  must  be  single,  677. 

amendment  of  repealed  statute  seems  to  be  valid,  692. 
validating  statutes,  1006,  1011,  1012.  1003. 
CONSTRUCTION  OF  STATUTES  GENERALLY,  107-110. 

a  law  shall  embrace  but  one  subject  matter  which  shall  be  ex- 
pressed in  title,  666,  676. 
statutes  not  incorporated  in  Revised  Statutes  repealed,  108. 
laws  passed  during  secession  of  southern  states  valid,  884. 
validating  statutes  not  repealed,  109. 

do  they  validate  want  of  authority  in  oflacer  only,  or  also  defec- 
tive  certificate   or   acknowledgment,    1032. 
statutes   construed   as   continuation,   110. 
See  note    under  each  act    considered    separately  for    construction  of 

same. 
CONSTRUCTIVE  NOTICE,  23,  2. 

CONVEYANCES  AND  REGISTRATION  PRIOR  TO  1836,  chapter  1. 
verbal  sale  of  real  estate  valid,  2. 
form   of  contract,   2. 
notice  and  priority,   2. 
CONVEYANCE  BY  MARRIED  WOMEN,  PRIOR  TO  THE  ACT  OF 
FEBRUARY   3,  1841. 
not  required  as  at  present,  238. 
consent  of  husband  required  but  not   separate   acknowledgment, 

239. 
wife's  acknowledgment  taken  in  same  manner  as  single  person's, 

240. 


INDEX.  475 

COXYEYAXCE  BY  MARRIED  WOMEX,  PRIOR  TO  THE  ACT  OF 
FEBRUARY  3,  1841   (Continued), 
after    adoption   of    common  law,   no    provision   made   until   1841, 

241. 
convej*  her  personal  property  without  acknowledgment,  242. 
COXVEYANCES  BY  MARRIED  WOMEX  AFTER  FEBRUARY   3, 
1841.     See  Acknowledgment  by  Married  Women,  247-273a. 
wife's   conveyance   must   be   separately   acknowledged,   243,   346- 

348b. 
wife  must  be  joined  by  husband  in  her  deed  or  conveyance,  346- 

348b,  560. 
by  agent  or  attorney,  244. 
husband  and  wife  may  convey  her  separate  property  by  execution 

of  different  instruments,   244. 
executory  contract  for  sale  of  homestead  not  binding,  245. 
executory  contract  for  sale  of  wife 's  separate  property  binding. 

246. 
wife  need  not  be  joined  in  her  conveyance  when  husband  has  de- 
serted her  or  is  insane,  273. 
COPIES  OF  ARCHIVES,  TO  BE  RECORDED.  37,  38. 
of  archives  to  be  admissible  in  evidence,  39,  40. 
of  protocols,   30,   31. 
CORPORATIOXS      MAY      MAKE      ACKXOWLEDGMEXTS      AND 

PROOF,  553-559. 
COUNTY  CliERKS,  authorized  to  act  when,  937-980. 
recorders,  42. 

use  of  seal  not  necessary,  when,  50. 
custodian  of  records,  24. 

not  authorized  to  act  without  their  counties,  when,  112. 
COUNTY  COURTS,  852-894. 
COUXTY  COMMISSIOXERS  AUTHORIZED  TO  ACT,  WHEX,  856, 

874,  877-879. 
COUNTY  JITDGES  AUTHORIZED  TO  ACT  WHEN,  853,  883-894. 
COURTS  OF-  RECORD,  that  fact  suflBciently  shown  when  it  appears 
from   certificate   of  the  clerk  that   the  court   had   a   clerk   and 
seal,  533. 
COURTS  PRIOR  TO  1837,  8-22. 

CURING  ACKXOWLEDGMEXTS  AXD  CERTIFICATES,  992-1068. 
adopting  form  invalid  at  time  made  does  not  cure,  129. 
by  officer — officer  may  amend  certificate  when,  992. 

in  some  other  states  held  officer  may  correct  certificate.  993. 
the  reverse  held  in  most  other  states,  994. 
by  grantors — may  be  corrected  by  grantors,  995. 

exception   to   above   rule   where   husl)and    fails   to   join   until 

after  wife's  death,  996. 
wife  may  acknowledge  after  death  of  husband,  997. 
by  action— prior  to  Revised  Statutes  of  1879,  998. 


476  INDEX. 

CUEING     ACKNOWLEDGMENTS     AND     CERTIFICATES     (Con- 
tinued). 

hy  action— after  Ecviscfl   Statutes   of   1879,   999. 

certificate  only  can  be  remedied,  not  acknowledgments,  1000. 

acknowledgment  defective  on  account  of  interest  of  officer, 

1001. 
acknowledgment   of  single  person  cured,  1002. 
above  acts  constitutional,  1003. 
barred  by  limitation,  1004. 
proved  by  circumstantial  evidence,  1005. 
by  statute — eonstitutionalitj^  of,  1006. 
officer  interested  party,  1007. 
in  other  states,   1008-1010. 
what  acts  constitutional,  1011. 
what  acts  unconstitutional,   1012,  1013. 
change  of  law  will  not  affect  validity  of  acknowledgments,  1014. 
validity  of  statutes — how  construed,  1015. 

statutory  enactments  and  annotations.     For  special  acts,  see  1060- 
1068. 

validating  statutes  not  repealed,  1016. 
January  19,  1839 — copies  admitted  to  record  when,  1017. 
February  5,  1841 — registration  of  deed  acknowledged  before 
certain  officers  validated,  1018. 
idem — how  construed,  1019-1021. 
April    29,   1846 — registration    of    wife's    property  validated, 

1022. 
May   2,   1846 — acts   of   chief  justices   of   county  courts   vali- 
dated, 1023. 
May  12,  1846 — certain  instruments  may  be  recorded,  1024. 
May    13,  1846 — certain    copies    admissible  in  evidence,  1025, 

1026. 
November  24,  1851 — seals  used  in  Galveston  county  validated, 

1027. 
February  9,  1856 — ^acknowledgments  of  deputy  county  clerks 

validated,   1028. 
February  9,  1860 — ^registration  of  deeds  acknowledged  before 
certain  officers  validated,  1029. 

when  such  instruments  recorded,  copies  admissible  in  evi- 
dence, 1030. 
acknowledgment   before   unauthorized   notary   validated, 

1031. 
does  it  validate  where  the  acknowledgment  or  certificate 
is  defective,  or  only  the  want  of  authority  in  the  offi- 
cer, 1032-1037. 
-January   14,   1862— acts   of   deputy   county  clerks   validated, 
1038. 


INDEX.  477 

CUEING     ACKNOWLEDGMENTS     AND     CEETIFICATES      (Con- 
tinued). 

August    13,   1870 — acknowledgments    before    county    judges 

validated,  1039. 
April   14    1S74 — acknowledgments   of   district   clerks    as   jus- 
tices of  the  peace,  validated,  1040. 
April    27    1874 — acknowledgment    taken  without    state  vali- 
dated when,  1041. 

cured  want  of  authority  in  notary,  1042. 
but  in  case  of  married  woman's  acknowledgment,  1043. 
above  act  restricted  to  United  States,  1044. 
May  2,  1874 — ^acknowledgments  of  notaries  validated,  when, 

1045,  1046. 
constitution   of   1875 — ^certain    titles   shall   not   be    recorded, 

1047. 
June  161,  1876 — certain  acts  of  county  judges  validated,  1048. 
July  28,   1876 — certificates  of  wife's  acknowledgments  vali- 
dated, 1049,  1050. 
March  13,  1879 — acts  of  persons  holding  office  of  both  dis- 
trict and  county  clerks  validated,  1051. 
April  18,  1879 — acknowledgments  of  notaries  using  defective 

seals,  validated,  1052. 
Kevised  Statutes  of  1879  and  1895— legality  of  acknowledg- 
ment depends  on  law  in  force  at  time,  1053. 
acknowledgment  cured  by  action  at  law,  1054. 
barred  by  limitation  when,  1056. 

validated  want  of  authority  in  certain  officers,  1057. 
March  18,  1881— validates  defective  seal,  1058. 
April  5,  1889— acknowledgments  by  notaries  using  defective 

seal,  validated,  1059. 
April  15.  1905- attempts  to  validate  want  of  corporate  seal 

in  deeds  by  attorneys,  1059a. 
December  24,  1840 — validates  the  acts  of  Samuel  Todd,  1060. 
August   19,   1856— validates  the  acts  of  Levy  S.  McMicken, 

1061. 
AugTist    30,   1856— validates    the   acts    of    David  P.  Fearris, 

1062. 
May   18,   1871— validates    acts   of   Silas   McCrary   and  Jerry 

"Washington,  1063. 
May  25,  1871— validates  acts  of  I.  H.  Stein,  1064,  1065. 
May  31.  1871 — validates  acts  of  I.  A.  Lee,  1066. 
May  13,  1875 — validates  acts  of  C.  L.  Thurmond,  1067. 
April  ],  1SS7 — validates  acts  of  Wm.  Veal,  1068. 
CUSTOM,  3  (j). 

DATE,  of  certificate,  131. 
authentic  instrument,  3. 


478  INDEX. 

DK  FACTO  OFFICEES  MAY  TAKE  ACKNOWLEDGMENTS  AND 

PEOOF,  585,  769. 
DEFECTIVE    CERTIFICATE    OF    VALID    ACKNOWLEDGMENT, 
249-255,  318. 
acknowledgment   with    valid   certificate    valid   when,    256. 
validated   how,   992-1068. 
DE  JURE  OFFICERS,  769. 

DEPUTIES — may  take  acknowledgments  and  proof,  587. 
of  interested  party  may  not,  578. 

-nay  acknowledge  and  prove  instruments,  when,  545,  546. 
deputy  county  clerks,  937-980. 
deputy  district  clerks.  981-991. 
DISTRICT    JUDGES    AUTHORIZED   TO    TAKE    ACKNOWLEDG- 
MENTS AND  PROOF,  895-915. 
DISTRICT    CLERKS    AUTHORIZED   TO    TAKE    ACKNOWLEDG- 
MENTS AND  PROOF,  981-991. 
DURESS   of  .wife  may  be  shown  when,  319,  320. 

EFFECT  OF  REGISTRATION  PRIOR  TO  1836,  4. 
EFFECT  OF  ACT  OF  1836,  23-50. 
EFFECT  OF  AUTHENTICATION,  4. 

EFFECT  OF  ACKNOWLEDGMENT  AND  PROOF,  63-65. 
EQUITIES,  313-317. 

EQUIVALENT  EXPRESSIONS  MAY  BE  USED,  312,  161. 
ESSENCE  OF  WIFE'S  DEED  IS  ACKNOWLEDGMENT,  247. 
ESTOPPEL  AND  EQUITIES,  313. 
in  case  of  partition,  314. 
where  wife 's  land  is  released,  315. 
where  fraud  is  practiced  by  wife,  316. 

not  estopped  simply  because  she  received  the  benefits,  317. 
EVIDENCE. 

certificate  as,  194-204. 

not  evidence  of  execution  of  deed,  194,  195. 

admissible  to  prove  protest,  196. 

acknowledgment   validates   deed,   197. 

protocols  and  copies  admissible  on  certificate  when,  198. 

copies   of  archives  admissible,   199. 

copies  from  foreign  jurisdictions  not  admissible,  200. 

after  act  of  December  20,  1836,  proof  of  execution  required, 

201. 
copies  filed  prior  to  1837  admissible  when,  202,  203. 
copy  of   deed  not   properly  acknowledged  not   admissible   as 
ancient   deed,  204. 
certificate  of  acknowledgment  proven  by  secondary  evidence,  205. 
secondary  evidence  admissible  when,  190. 
proof  of  deed  when  offered  in,  473-483. 
protocols  admissible  in,  26. 


INDEX.  479 

EVIDENCE   (Contiuued). 

proof  of  deeils  offered  in  evidence,  473. 
by  subscribing  witnesses,  474. 
subscribing  witnesses  not  obtainable,  or  are  adverse  parties, 

475. 
where  witnesses'  handwriting  cannot  be  proved,  476. 
may  be  proved  by  grantee  when,  477. 
proved  by  any  competent  witness  wlien,  478. 
no  subscribing  witnesses — proof  how  made,  479. 
by  other  evidence,  480. 
primary  and  secondary  evidence,  481. 
general  rule,  482. 

line  drawn  between  primary  and  secondary  evidence,  483. 
EXAMINATION  OF  WIFE,  257-266. 

EXECUTORY  CONTRACT  OF  WIFE    for  sale  of  homestead  invalid, 
245. 
for  sale  of  her  separate  property  binding  on  her,  246. 
EX-OFFICIO  OFFICERS,  586. 
EXPLANATION    OF    INSTRUMENT,  to    married  woman,  necessary 

when,  261-265. 
EXTRATERRITORIAL  AUTHORITY.  .595,  114. 

FEDERAL    .JUDGES    AUTHORIZED   TO    TAKE    ACKNOWLEDG- 
MENTS AND  PROOF  WHEN,  932-996. 
FIRST  AND  SECOND  JUDGES,  19,  17,  19,  20. 
FOREIGN,  acknowledgments  and  proof,  528-543. 

oflScer  must  be  authorized  by  laws  of  Texas,  210. 
language   invalidates   when,   529. 
copies  of  foreign   archives,   200. 
FORGERIES,  3  (g). 
FORM  OF  CERTIFICATES, 
single  certificates,  101,  102. 

must  comply  with   law  in  force  at   time  certificate   is  made, 

217. 
substantial  comjiliance  with   statute  only  required,  218. 
form  and  requirements  under  the  different  laws,  219-237. 
of  married  woman's  acknowledgment,   103,  104. 

controlled  by  law  in  force  at  time  it  is  made,  286. 
law  subsequently  adopting  does  not  validate  prior  acknowl- 
edgment, 286. 
substantial  compliance  with   law   necessary,   287, 
may  be  valid  as  to  wife  while  invalid  as  to  husband.  288. 
statutory  requirements  under  various  laws,  325-34Sb. 
of  proof  1  y  subscribing  witnesses,  435. 

contnilleil   hy  law  in  force  at   lime  certificate  is  made,  407. 
substantial  compliance  with   hiw  required,  408. 
statutory  requirements  under  various  laws,  409-439. 


480  INDEX. 

FORM  OF  CERTIFICATES  (Continued), 
of  proof  by  handwriting,  453,  454. 

no  form  prescribed  and  a  substantial  compliance  with  stat- 
ute only  required,  452,  440-451. 
statutory  requirements  relatinji;  to  same,  455-470. 
of  seals,  500. 
FRAUD  may  be  shown  when,  182,  316,  318. 
FREE  FROM  COMPULSION  BY  HUSBAND,  266,  298.  299. 

HANDWRITING,  proof  by,  440-454. 

proof  must   conform  to  statute  in  force  at  time  proof  is  made, 

441. 
proof  for  record  by  proof  of  handwriting,  442. 

must  be  proved  by  persons  authorized  by  statute,  443. 

where  witness  is  interested,  444. 

number  of  witnesses  required,  384. 
when  offered  in  evidence,  445. 

ancient  instrument,  446. 

predicate  for  secondary  evidence,  447. 

most  satisfactory  proof,  448. 

proof  of  handwriting  by  comparison,  449. 

rule  modified,  450. 

(And  see  Common-law  Method  of  Proof,  473-483.) 
certificate  of  proof  by  proof  of  handwriting,  451. 

substantial  compliance  only  necessary,  452. 

valid  forms,  453. 
proof  by  handwriting — statutes  and  notes,  455-470. 
HISTORICAL  OUTLINE,  1. 
HOW" MADE  AND  TAKEN,  68-110. 

under  what  law  should  be  taken,  68. 
single  acknowledgments,  99. 

certificate,  101. 

form  of  certificate,  102. 
married  woman's   acknowledgments.   103. 

form  of  certificate,  104. 
identity  of  parties,  100,  147. 
acknowledgment,   how   made,   105. 
through  telephone  valid,  106. 
prior  to  act  of  1836,  69. 
under  subsequent  statutes,  70-104. 

IDENTITY    OF     GRANTOR     AND    PERSON    ACKNOWLEDGING 
DEED,  100,  147. 
must  appear,  but  identity  of  names  usually  sufiieient,  147. 
omission  of  grantor's  name  in  certificate,  148. 
omission  of  "to  be  the  person"  not  fatal,  153. 
variance  in   names,   149. 


IXDEX.  481 

IDENTITY    OF    GEANTOE     AXD    PEE  SON    ACKNOWLEDGING 
DEED    (Continued), 
parol  evidence  to  show  identity,  150. 
variance  immaterial  when,  151. 
IMPEACHMENT    OF    CEETIFICATE.     See    Conclusiveness  of  Cer- 
tificate, 211-215,  275-278,  319-323. 
by  parol  evidence,  174-191. 
in  case  of  equitable  titles,  188. 

in  case  of  legal  titles,  189.  " 

INCOMPETENT   WITNESS,   PEOOF  BY,   386. 
INCOMPLETE    DEED   MAY  BE    ACKNOWLEDGED   WHEN,   117, 

118. 
INSANITY  OF  HUSBAND,  WIFE  MAY  CONVEY,  273. 
INSTEITISIENTS,  PEOOF  OF  BY  WHOM  MADE,  378-384. 

instrumental  witnesses,  ofiice  of,  3  (f),  219,  353. 
TNTEEEST.  disqualifies  an  oflScer  for  taking,  573. 
cannot  be  shown  by  parol,  183. 
stockholder  of  corporation,  574. 
officers  of  corporation,  575. 
commission  as  trustee,  576. 
preferred    creditor,    577. 
deputy  of  interested  party,  578. 

of  officer  takings  acknowledgment  renders  it  incurable,  1001. 
interest  disqualified  witness  prior  to  1871,  387,  388. 
can  a  grantor  be  a  subscribing  witness,  388. 
interest  does  not  disqualify  when,  389. 
trustee  may  prove  deed  to  himself  when,  354. 
where   one   witness   incompetent,   handwriting   of   other   may   be 

proved,  390. 
grantor's  selection  and  volunteer  witnesses,  391. 
INTEELINEATIONS  OF  AUTHENTIC  INSTEUMENTS,  3   (g). 
INTEEPEETEE,  explanation  by,  sufficient  when,  263,  319. 
INTEODUCTION.    "KNOWN    BY"  HELD  TO  BE    SUFFICIENT, 

140,  269. 
lEEEGULAE   CEETIFICATES,  157-173. 
sufficient  certification,  157. 

clerical  errors  not  fatal,  161. 
"the"  instead  of  "they,"  162. 
"with"  for  "without"  and  other  mistakes,  163. 
insufficient  certification,  164. 

"the  within  instrument  was  duly  proved"  insufficient,  164. 
"he"  for  "they"  defective,  165. 
omission  of  "they"  defective,  166. 
surplusage,  167, 

unnecessary  words  generally,  167. 

unnecessary  words,  168. 

uncanceled  words  in  printed  certificate,  169. 

31 


482  INDEX. 

lEEEGULAE   CEETIFICATES    (Continued), 
name  out  of  place^  170. 
errors  and  omissions  fatal  when,  ] 71-173. 

JUDGES,  decrees  relating  to  same — prior  to  1837,  7-21. 
supreme  court  of  justice,  8. 
judicial  power  to  remain  in  same  officers,  9. 
supreme,  circuit  and  district  courts,  10. 
judges  of  responsibility,  11. 
alcaldes  and  primary  judges,  12. 
judges  to  act  with  assisting  witnesses,  13. 
supreme  judicial  courts  of  Texas,  14. 

primary  judges  and  commissioners  assisted  by  witnesses,  15. 
first  and  second  judge  to  be  notary  public,  16. 
first  judge  execute  notarial  acts,  17. 
alcaldes,  commissaries  and  primary  judges,  18. 
judges  of  courts,  19. 
first  judge,  primary  judge,  20. 
constitution  of  1836 — courts  organized,  21. 
required  to  deposit  archives  with  county  clerk,  24. 
of    courts    of   record — capacity   sufficiently   shown    where    it    ap- 
pears from  the  certificate  that  the  court  had  a  clerk  and  seal, 
533. 
of  first  instance  may  acknowledge  deed  when,  572. 
of  county  court,  852-894. 
of  district  court,  895-915. 
of  supreme  court,  916-931. 
of  federal  court,  932-936. 
presumption  of  authority  as  to  authentic  instruments,  3  (h). 

that  he  acted  within  his  jurisdiction,  114. 

that  he  affixed  seal  where  he  so  certified,  307. 

that  his  certificate  recites  the  facts,  324. 
authority  immaterial  when,  22. 
JUSTICES  OF  THE  PEACE    may  take  acknowledgments  and  pr«of 
when,  825-851. 
authorized  to  appoint  deputies,  when,  838. 
summary  of  statutes  as  to  when  authorized,  826. 

KNOWLEDGE  BY  WIFE  OF  CONTENTS  OF  DEED,  264. 
KNOWN  OR  PROVED  TO  OFFICER,  139,  268,  301. 

known  by  introduction  sufficient,  140,  269. 

omission  of  "known  to  me"  fatal,  141. 

acquaintance  sufficiently  shown,  142-145,  269. 

"proved  to  me  on  oath  of" — surplusage,  146. 

LANGUAGE— Spanish  to  be  used  prior  to  1836,  3  (b). 
English  language  to  be  used  when,  125. 


INDEX.  483 

LAW  ADOPTING  DIFFERENT  FORM  OF  CERTIFICATE,  129. 
LEGAL  HOLIDAY,  acknowledgment  taken  on  valid,  122,  128. 
LIMITATION,  as  to  correction  of  certificate,  180,  1004. 

MAGISTRACY  AND  CONFORMITY,  certificate  of,  206-209. 
certificate  of  magistracy  and   conformity,  206. 
required  in  Texas  when,  207,  531,  538,  542. 
remained  in  force  how  long,  208. 
not  required  thereafter,   209. 
foreign  officer  must  be  authorized  by  laws  of  Texas,  210. 
MARK,  WHERE  WITNESS  SIGNS  BY,  365. 

MARRIED  WOMEN. 

acknowledgment  and  conveyance,  prior  to  the  act  of  February  3, 
1841,  238-242. 

not  required  as  at  present,  238. 

consent   of  husband   required   but  not   separate   acknowledg- 
ment, 239. 

wife's  acknowledgment  taken  in  same  manner  as  single  per- 
son's, 240. 

after  adoption  of  common  law,  no  provision  made  until  1841, 
241. 

convey  personal  property  without  acknowledgment,  242. 
conveyances  by,  after  February  3,  1841,  243-246. 

wife 's  conveyance  must  be  separately  acknowledged,  243. 

wife    must    be    joined   in   her   conveyance  by  her  husband, 
when,  560,  273,  564. 

by  agent  or  attorney,  244. 

executory  contract  for  sale  of  homestead  not  binding,  245. 

executory  contract  for  sale  of  wife's  other  property  binding, 
246. 
acknowledgments  subsequent  to  February  3,  1841,  247-273. 
certificates  of  wife's  acknowledgment,  274-348b. 
may  make  acknowledgments,  560. 

held  that  it  must  be  acknowledged  by  husband  also,  561. 

husband's  acknowledgment  not  necessary,  562. 

acknowledgment  need  not  be  at  same  time,  563. 

abandoned  by  husband,  564. 

husband  insane,  565. 

as  agent,  566. 
wife  cannot  aiithorize  husband  to  act  for  her  when,  567. 
married  women  can  convey  by  attorney,  568. 
wife's  executory  contracts,  569,  570. 
wife's  acknowledgment  relates  back  when,  120. 
husband  may  join  at  different  time,  121. 
and  in  different  instrument,  244. 

MATERIALITY  OF  AUTHENTICATION,  4. 


484  INDEX. 

METHODS  OF  PEOVTNG  INSTRUMENTS. 

for  record — by  subscribing  witnesses,  349-406. 
by  handwriting,  440-470. 
by  obtaining  and  recording  judgment,  471. 

for  admission  in  evidence,  473-482. 
MEXICAN  LAWS,  2,  cliapter  1.     See  Spanish  and  Mexican  Laws. 

verbal  sale  of  real  estate  valid,  2. 

priority  of  purchase  under,  2. 
MIDDLE  INITIAL  IMMATERIAL,  152. 
MISTAKE    of  wife  may  be  shown  when,  319. 

NAMES. 

in  authentic  instrument,  3e. 
middle  initial  immaterial,  152. 
identity  in,  147. 
variance  in,  148-151. 
NECESSITY  -of  authentication,  4. 

of  acknowledgments  and  proof,  54-62. 
of  registration  under  act  of  1836,  23. 
NOTARIAL  FLOURISHES,  3   (d). 
NOTARIES— generally,  76S-824a, 

authority  prior  to  1836,  3,  3   (a),  5,  6. 
authority  after  November  13,  1835,  chapter  20. 
chief  justices  of  county  court,  ex-officio,  49,  779-799,  852. 
primary  judges  ex-officio  notaries,  777. 
appointment  and  qualification,  771. 
eligibility,  770. 

character — de  facto  and  de  jure,  769. 
jurisdiction  and  authority,  773. 
designation,  "N.  P.,"  772. 
seals,  774. 

summary  of  statutes  as  to  when  authorized,  775. 
statutes  relating  to  notaries,  776-824a. 
NOTICE,  66,  216,  63. 

OFFICIAL  CHARACTER,  133-136. 

must  be  shown  by  certificate,  133,  532-534. 

certificate  not  showing  official  character  aided  by  record,  134. 

cannot  be  shown  by  record,  but  aided  by  deed,  135. 

cannot  be  shown  by  extrinsic  evidence,  135a. 

official  character  shown  by  initials  and  caption  of  certificate,  136. 

shown  by  certificate  of  conformity  when,  531,  538,  542. 

certificate  which  shows  that  court  had  clerk  and  seal  sufficiently 
shows  that  the  court  was  a  court  of  record,  533. 
OFFICERS  AUTHORIZED  TO  AUTHENTICATE,  PRIOR  TO  1836, 
5-20. 

authorized    subsequent    to  1836.     See    Who  May  Take  Acknowl- 
edgments. 


INDEX.  485 

OMISSIONS   AND  EKEOES   WHICH   AEE   NOT   FATAL,   307-310, 
171,  172. 

venue,  307. 

date,  307. 

purposes  and  considerations,  307. 

reference  to  seal,  as  "witness  my  hand  and  seal,"  307,  309. 

"it"  in  clause  "she  did  not  wish  to  retract  it,"  309. 

"freely,"  309. 

"and  deed"  in  clause  "her  act  and  deed,"  309. 

"delivered,"  309. 

"shown  to  her,"  309, 

"sealed  and  delivered,"  309. 

'^' willingly  signed  the  same,"   309. 

"to  be  her  act  and  deed,"  310. 

'"Tier"  in  "her  act  and  deed,"  310, 

and  the  errors, 

"signed"  instead  of  "execute,"  309. 

"contract"  instead  of  "retract,"  309,  312. 

"without  bribe,  threat  of  compulsion,"  309,  312. 

"free  act,"   309. 

"separate"  instead  of  "privily,"  309,  312. 

"with"  instead  of  without,  310. 

"assigned"  instead  of  "signed,"  310. 

"separate  and  apart,"  310. 

"execute"  for  "subscribe,"  312. 

she  voluntarily  assents  thereto,  310. 
OMISSIONS  FATAL,  311,  173,  289-306,  137. 

explained,  311. 

"signed,"  311. 

"they,"  166. 

"he"  for  "they,"   311. 
OBLGIN   OF  ACKNOWLEDGMENTS,  54. 

PAEOL  EVIDENCE,  174,  191,  284,  285. 

to  aid  certificate,  not  admissible  when,  174. 

to  aid  certificate  admissible  when,  176. 

to  correct  defective  certificate  of  valid  acknowledgment,  177-179. 

limitation,   180. 

where  acknowledgment  itself  is  defective,  evidence  inadmissible, 

181. 
parol  cvidcncf>  to   iuipcaeh  certificate,  182. 
inadmissible  when,  182. 

want  of  capacitj'  in  officer  cannot  be  shown,  183. 
parol   evidence  to  impeach  certificate  admissible  when,  184. 
may  show  no  acknowledgment  made,  184. 
admissible  where  purchaser  is  chargeable  with  notice,  185. 
tn   aid   seal,  494,  495. 


•iS6  INDEX. 

PAETNEES,  may  take  acknowledgments  when,  581,  573. 

may  make  acknowledgments  when,  551,  552. 
PEESONS  AUTHORIZED  TO  MAKE  ACKNOWLEDGMENTS.     See 
Who  May  Make  Acknowledgments, 
who  may  take  acknowledgments.     See  Who  May  Take  Acknowl- 
edgments. 
PERSONAL   PROPERTY   OF   WIFE   CONVEYED    WITHOUT   AC- 
KNOWLEDGMENT, 242. 
PLACE  OF  TAKING  ACKNOWLEDGMENTS,   111. 
county  clerk  not  authorized  where,  112. 
chief  justices  of  county  courts  authorized  where,  113. 
presumption  that  otficer  acted  within  jurisdiction,  114. 
must  be  taken  in  compliance  with   Texas  laws,  115. 
PLEADING  ACKNOWLEDGMENTS  AND  PROOF,  1069-1072. 
must  allege  acknowledgments  when,  1069,  1070. 
married  women  seeking  to  avoid  deed,  1071. 
must   attack  acknowledgment  by  affidavit  when,  1072. 
PREBUMPTION,  where  record  is  made  that  proof  was  made,  47. 
fhat  officer  acted  within  liis  jurisdiction,  114. 
that    officer  did  his   duty  in    explaining    instrument   to   married 

woman  when,  291. 
of  authentic  instruments,  3   (h). 
as  to  certificates,  does  not  cure  defects  in,  215. 
lapse  of  time  will  not  aid,  215. 

that  officer  affixed  seal  where  he  so  certifies,  489,  490,  307. 
is  that  certificate  recites  the  facts,  324. 
that  instrument  found  in  possession  of  a  party  is  the  testimonio 

and  not  protocol,  34. 
as  to  seals,  489,  490,  307. 
as  to  proof,  357. 

as  to  authority  of  officers,  3  (h). 
as  to  deputy's  authority,  593. 
PRIMARY  AND  SECONDARY  EVIDENCE,  481-483. 
PRTTVIARY  JUDGES.  12\  15-17. 

PRIORITY  OF  PURCHASERS  UNDER   SPANISH  LAW,  2. 
PRIVATE  INSTEUMENTS,  36. 
PRIVY  EXAMINATION  OF  WIFE,  257-259,  290-292. 

explanation  to  wife,  261-265,  293-297. 
PROOF  OF  INSTRUMENTS  BY  WITNESSES,  349-454. 

proof  presumed  to  have  been  made  where  record  is  made,  47. 
certificate  of  proof  by  subscribing  witnesses  must  show  what,  393- 
408. 

witness  known,  393,  394. 

that  witness  was  sworn,  395. 

witness  saw  execution,  or  heard  acknowledgment,  and  was  re- . 

quested  to  sign,  396. 
idem — rule  prior  and  siabsequent  to  1846,  397. 


INDEX.  487 

PKOOF  OF  INSTRUMENTS  BY  WITNESSES   (Continued). 

where  witness'  name  appears  on  deed,  it  is  not  necessary  to 

certify  that  he  subscribed,  398. 
alternative  certificate,  399. 
irregular  certificate,  400. 
official  character,  401. 
seal,  402. 
signature,  403. 

purposes  and  considerations,  etc.,  404. 
execute  instead  of  subscribe,  etc.,  405. 

grantor's  name  instead  of  attorney's,  in  certificate,  fatal,  374. 
amendment  of  certificate,  992,  472. 
proof  certified  to  under  act  of  1836.,  42-48,  357. 
under  subsequent  statutes,  359,  371-375. 
other  requirements  and  force  and  effect  of  certificate,  406. 
certificate  of  keeper  of  archive  sufficient,  38-40. 
form  of  certificate  of  proof,  435,  407-439. 
controlled  by  what  law,  407. 

substantial   compliance  with  statute   only  required,   408. 
forms  under  acts  from  1836  to  1879,  413-431. 
under  Revised  Statutes  of  1879,  still  in  force,  435. 
proof  of  handwriting,  453,  454. 
requirements   of  statutes,   409-439. 
certificate   of  proof  by  proof  of  handwriting,  451. 
substantial  compliance  only  necessary,  452. 
valid  forms,  453,  454. 
amendment  of  certificate,  992. 
how  made,   68-106,   283. 
how  made  under  act  of  1836,  357. 
presumption  as  to  proof,  357. 
how  far  repealed,  358. 
how  proved  under  subsequent  statutes,  359. 
how  proved  generally,  360-375. 

judge  attesting  is  subscribing  witness  when,  360. 
acknowledgment  of  officer's  signature  to  certificate  sufficient 

proof,  361. 

officer  not  competent  without  accounting  for  absence  of  wit- 
ness, 362. 

subscribing  witness  must  be  produced  if  possible,  363. 

sole  subscribing  witness  sufficient  when,  364. 

where  witness  signs  by  making  his  innrk,  365. 

certificate  that  instrument  was  duly  proven  before  mo  insuffi- 
cient, 366. 

necessary  to  state  that  witness  signed  at  request  of  grantor 

when,  367. 
signed  at  request  of— rule   at  present  time,  368. 
not  necessary  to  show  witness'  means  of  knowledge,  369. 


488  INDEX. 

PEOOF  OF  INSTRUMENTS  BY  WITNESSES  (Continued). 

means  of  knowledge  stated,  370. 

must  show  witness  saw  grantor  sign  or  heard  him  acknowl- 
edge,   371. 

not  necessary  for  witness  to  have  seen  execution,  372. 

saw  firm  name  signed,  373. 

grantor's  name  instead  of  attorney's  in  certificate,  fatal,  374. 

clerical  omission  not  fatal  when,  375. 

other  means  of  proving  conveyances  for  record,  471. 

made  under  what  law,  349. 
knowledge  of  witnesses'  identity  by  officer,  392. 
proof  by  proof  of  handwriting,  440-470. 

proof  must  conform  to  statute  in  force  at  time  proof  is  made, 
441. 

proof  for  record  by  proof  of  handwriting,  442. 

must  be  proved  by  persons  authorized  by  statute,  443. 

where  witness  is  interested,  444. 

where  witness  is  grantor  or  grantee,  445. 

ancient  instrument,  446. 

predicate  for  secondary  evidence,  447. 

most  satisfactory  proof,  448. 

proof  of  handwriting  by  comparison,  449. 

rule  modified,  450. 

proof  of  handwriting  of  signer  of  testimonio,  46. 
proof  of  deeds  offered  in  evidence,  473-483. 

by  subscribing  witnesses,  474. 

subscribing  witnesses  not  obtainable  or  are  adverse  parties, 
475. 

•where  witness'  handwriting  cannot  be  proved,  476. 

may  be  proved  by  grantee  when,  477. 

proved  by  any  competent  witness  when,  478. 

no  subscribing  witnesses — ^proof  how  made,  479, 

by  other  evidence,  480. 

primary  and  secondary  evidence,  481. 

general  rule,  482. 

line  drawn  between  primary  and  secondary  evidence,  483. 
what  officers  may  take  proof  by  subscribing  witnesses,  376. 

officer  who  is  subscribing  witness  qualified,  377. 
who  may  be  subscribing  witnesses,  385. 

general  rule,  385. 

grantee  incompetent  witness,  386. 

interest  disqualified  witness  when,  387,  388. 

query.  Can  a  grantee  be  a  subscribing  witness?  388. 

interest  does  not  disqualify  when,  389. 

where  one  witness  incompetent,  handwriting  of  other  may  be 
proved,  390. 

grantor's  selection  and  volunteer  witnesses,  391. 


INDEX.  489 

PEOOF  OF  INSTRUMENTS  BY  WITNESSES   (Continued), 
who  may  prove  instruments  for  record,  378-384. 
subscribing  witnesses,  generally,  378. 
where  there  were  no  subscribing  witnesses,  379. 
witness  beyond  jurisdiction  of  the  court,  380. 
under  the  act  of  1846,  381. 
under  the  act  of  1863,  382. 
under  the  Eevised  Statutes  of  1879,  383. 
Revised  Statutes  of  1895,  383. 

number  of  witnesses  to  prove  handwriting  required,  384. 
necessity    of  assisting  witnesses  under  Spanish  law  prior  to 
1836,  350. 

instrumental   witnesses  not   necessary  to   authentication, 
3  (f). 
conveyances  prior  to    1836   not  full  proof  unless    witnessed, 

351. 
witnessed  by  notaries,  352. 
under  colonization  laws,  title  not  witnessed  must  be  proved,  353. 
necessity  of  subscribing  witnesses  subsequent  to  1836,  354. 
•married  woman's  deed  cannot  be  proved  by  witnesses,  355. 
by  subscribing  witnesses  not  required  in  all  cases,  356. 
witness  must  be  known  to  officer,  392. 
PROTOCOLS,  2,  23-26,  3,  4,  198-200. 
admissible  in   evidence,  26,  4. 

as  ancient  instrument  tliough  not  authentic,  4. 
proceedings  of  ayuntamiento  should  not  be  delivered  to  county 

clerk,  27. 
protocols    should  not  be    delivered    to  the  general    land  commis- 
sioner when,  27,  31. 
protocol  might  be  proven  and  recorded,  28,  199. 
titles  issued  by  land  commissioner  also  called  protocols,  25,   31, 

34. 
necessity  of  recording  protocols,  29. 
certified  copies  by  county  clerks  admissible,  30. 
by  foreign  officer,  25,  200. 
presumption   is  that  instrument   found   in   possession   of  party  is 

not  the  protocol,  34. 
certified  copies  by  general  land  office  admissible  when,  31. 
PROVISIONAL  GOVERNMENT,  1. 
PUBLIC  INSTRUMENTS,  35,  2,  4. 

E-\ILROAD     CORPORATIONS      MAY     MAKE      ACKNOWLEDG- 
MENTS AND  PROOF,  558,  559. 
RECORDERS,  COUNTY  CLERKS  AS,  42. 
RKCOHIJS  DEPOSITMD  WITH   COUNTY  CLERKS,  24. 

protocols,  record  of,  28-31. 

testimonios,  record  of,  32-34,  46. 


490  INDEX. 

EEGISTRATION  PKIOK  TO  1S36,  2-5. 

EELATIONSHIP  OF    OFFICERS    DOES  NOT    DISQUALIFY,  582, 

583. 
REPEALS  BY  IMPLICATION,  622-631,  641,  642,  646-656,  663-666, 
statute  revising  subject  matter  of  former,  623,  664. 
latter  intended  as  substitute  for  former,  624,  665. 
statutes  relating  to  same  subject  matter,  625. 
statutes  should  be  construed  so  that  both  may  stand,  628. 
parties  have  their  election  of  remedies,  629. 
law  should  embrace  but  one  subject  matter,  666. 
REQUIREMENTS  OF  VALID  ACKNOWLEDGMENTS, 
single  persons,  99-105,  137-156. 

joint  acknowledgment  of  husband  and  wife,  257-269,  275-324. 
privy  examination  essential,  257. 

prior  to  act  of  February  3,  1841,  259. 
haw  corrected,  260. 
explanation  essential,  261,  262. 
by  interpreter  va.lid,  263. 
if  she  knew  contents  of  deed,  264. 

explanation  where  reference  is  made  to  another  instru- 
ment, 265. 
free  from  compulsion,  266. 
right  to  retract,  267. 
grantor  known  or  proved  to  officer,  268. 
extent  of  acquaintance,  269. 
RESIDENCE     OF    PARTIES     TO     AUTHENTIC    INSTRUMENTS, 

3   (e). 
RETRACT,  WIFE'S  RIGHT  TO,  267,  300,  270. 
REVENUE  STAMPS,  1073-1093. 

SEALS. 

seals  essential,  484. 

kind  of  seal  to  be  used,  484. 

not  constructive  notice  without  seal,  485. 

necessary  to  authenticate  instrument  prior  to  1837,  3   (d). 

not  required  when,  486. 

not  required  by  county  clerk  when,  50. 
attachment  of  seal  is  question  of  fact,  487. 
reference  to  seal  unnecessary  when  it  is  attached,  488. 
presumption  and  statement  as  to  seal,  489. 
reference  to   seal   on   record   atfords  presumption   of   proper   seal, 

490. 
statement   in   record   "no  seal   on"  ineffectual  if  original  shows 

seal,  491. 
no  presumption   that   seal  was  attached  where   there   is   nothing 

to  show  it,  492. 
clerical  omission  of  word  "seal"  not  fatal,  493. 


INDEX.  491 

SEALS  (Continued). 

parol  evidence  to  aid,  494. 
to  aid  omission,  495,  496. 
may  be  attached  when,  497. 
justices  must  use  seal  of  notaries,  49S. 
no  form  prescribed  for  commissioners  of  deeds  when,  499. 
form  of  seals  prescribed,  500. 

private  seals,  and  scrolls — railway  company  seals — in  lieu  of  offi- 
cial, 501. 

conveyance  without  private  seal  not  void,  502. 
See  Stamps, 
statutory  enactments  relating  to  seals,  503-527. 
SCHEDULE    OF    WIFE'S    SEPARATE    PROPEETY    ACKNOWL- 
EDGED HOW,  273  (a). 
SECONDARY  EVIDENCE,  190,  481-483. 
SEPARATE  EXAMINATION.  257-259,  290-292. 
SIGNATURES. 

to  authenticate  instrument,  3   (e),  203. 
to  book  in  which  protocols  are  written  sufficient,  203. 
of  officer  necessary  to  validity  of  certificate,  132,  306,  203. 
of  sole  subscribing  witness  sufficient  when,  364. 
SPANISH  AND  MEXICAN  LAWS,  2-22,  1079-1087. 

how  sale  may  be  effected  under  Spanish  and  Mexican  laws,  2. 
verbal  sale  of  real  estate  valid,   2. 
form  of  contracts,  2. 

notice  and  priorit-y  of  purchasers  under  Spanish  and  Mexican 
laws,  2. 
method  of  authentication  and  record  prior  to  1836,  3. 
by  authorized  officers,  3   (a). 
Spanish  language  to  be  used,  3  (b). 
stamped  paper  to  be  used,  3  (c). 
seals,  signets,  rubrics  and  notarial  flourishes,  3  (d). 
signatures,  names,  residences,  date,  venue,  terms,  etc.,  3  (e). 
assisting  witnesses  necessary  to  authentication  when,  3   (f). 
alterations,   blanks,   interlineations,   forgeries,   etc.,    3    (g). 
presumption — proof — antiquity,  3   (h),  34. 
method  for  Austin   colony,  3   (i). 
custom,  3   (j). 
necessity,  materiality  and  ofFoct  of  autlicnticrition,  4. 
officers  authorizcfl  to  authenticate,  5. 
notaries  public,  6. 

.judges  and  decrees  relating  to  same,  7-21. 
authority  of  officers  immaterial  when,  22. 
SPECIAL   COMMISSIONER   MAY    MAKE     ACKNOWLEDGMENT 

WHEN,  571. 
STAMPS— REVENUE. 

laws  whii-li  require  the  use  of  revenue  stamps,  1073. 


492  INDEX. 

STAMPS— REVENUE   (Contimied). 

effect  of  omissions  under  Spanisli  and  Mexican  laws,  1074. 

effect  of  omissions  under  United  States  laws,  1075. 

federal  laws  not  binding  on  state  courts,  1076. 

federal  statutes  do  not  apply  to  state  courts,  1077. 

laws   of  England   not  binding  hero,   1078. 

stamped  paper,   3    (c). 

stamp  laws  of  Spain,  Mexico  and  Texas,  1079-1087. 

stamp  laws  prior  to  decree  of  1823,  1079. 

decree  of  October  6,  1823— seals  or  stamps  and  their  value,  1080. 

order  of  June   22,   1824— form  of  stamps,   1081. 

decree  of  October  2,  1824 — form  of  stamps,  1082. 

decree  of  March  24,  1825 — new  settlers  exempt,  1083. 

instructions  of  May  31,  1827 — record-book  to  be  stamped,  1084. 

instructions   of   September   4,   1827 — record-book  to  be   stamped, 

1085. 
decree  of  February  9,  1828 — new  settlers  exempt,  1086. 
ordinance  of  November  13,  1835 — use  of  stamps  abolished,  1087. 
stamp  laws  of  United  States,  1088-1093. 

act  of  June  13,  1898 — stamps — how  attached  and  canceled — 
effect,  1089. 
provision    that   deeds  not    admissible  in    evidence  or   of  record, 

without,  1090. 
kinds  of  stamps,  1091. 
exemptions,  1092. 
schedule  A — stamp  laws,   1093. 
STATUTOEY  ENACTMENTS. 

acknowledgments,  requirements  as  to — 

single  acknowledgments — requirements  of,  219-237. 
prior  to  act  of  December  1836,  219. 
act  of  December  20,  1836,  220. 
certificate  required  when,  221. 
certificates  by  county  clerks  required  when,  222. 
acknowledgment  of  signature   of  office   sufficient,   223. 
proof  of  signature  of  single  witness  sufficient,  224. 
no  seal  necessary,  when,   225. 

when  grantor  is  known  to  officer,  it  is  not  necessary  to 
be  certified,  226. 
act  of  January  19,  1839,  227. 
act  of  February  5,  1840,  228. 
act  of  February  5,  1841,  229. 
act  of  May  8,  1846,  230. 
act  of  May  12,  1846,  332. 
acts  of  April  6,  1861,  January  14,  1862,  November  13,  1866, 

and  May  6,  1871,  233. 
act  of  March  6,  1863,  234, 


INDEX.  493 

STATUTORY    ENACTMENTS    (Continued). 

Acts  of  November  13,  1863,  August  8,  1870,  August  13,  1870 

and  May  6,  1871,  235. 
constitution  of  1875 — errors,  236. 
Revised  Statutes  of  1879  and  1895— identity,  237. 
married  women 's  acknowledgments  and  certificates  of  same,  325- 
348b. 

act  of  February  3,  1841 — requirements  and  form,  325. 

idem— annotated,  326. 
act  of  February  5,  1841 — validate  want  of  authority  in  cer- 
tain officers,  327. 
act  of  April  29,  1846 — acknowledgment  of  schedule  of  wife's 

property,  528. 
act  of  April  30,  1846 — requirements  and  form,  329. 
idem — annotated,  330. 
how  taken  without  the  state,  331. 
law  applies  to  what  property,  332. 
repeals  other  laws,  333. 
act  of  May  8,  1846 — commissioners  of  deeds,  334. 
act  of  May  13,  1846 — notaries  authorized,  335. 
act  of  May   12,   1846 — form   and   requirements   not   affected, 

336. 
act  of  March  16,  1848 — form  and  requirements  not  affected, 

337. 
act   of  December   18.   1849 — form   and   requirements   not   af- 
fected, 338. 
act  of  February  9,  1856— validates,  339. 
act  of  February  9,  1860— validates,  340. 
act  of  August  13,  1870— validates,  341. 
act  of  April  27,  1874— validates,  342. 
act   of  May   25,   1876 — form   and  requirements   not   affected, 

343. 
act  of  July  28,  1876— validates,   344. 
Revised  Statutes   of  1879   and  1895— requirements,  345. 
husband  must  join  wife  in  her  conveyance,  346. 
conveyance  of  homestead  must  be  acknowledged,  347. 
form  of  certificate  of  wife's  acknowledgincnt,  348. 
acknowledgments  without  the  state. 
when  authorized,  536-543. 
by  whom  authorized,  718-767. 
authority  of   officers  generally,  with   annotations,   596-717. 
prior  to  1837,  6-21. 
officers  authorized  to  act  witliout  the  state  and  within  the 

United  States,  718-755. 
officers  authorized  to  act  without  the  United  States,  756-767. 
notaries  public,  775-824a. 


494  INDEX. 

STATUTORY    ENACTMENTS    (Continued), 
.insticos  of  the  peace,  825-851. 
judges   of   the   county   court,   852-894. 
district  judges,  895-915. 

judges  of  supreme  court  and  court   of  appeals,  916-931. 
federal  judges,  932-936. 
county  clerks,  937-980. 
district  clerks,  981-991. 
construction  of. 

construction  of  statutes,  107. 

statutes  not  incorporated  in  Revised  Statutes  repealed,  108. 
validating  statutes  not  repealed,  109. 
statutes  construed  as  continuation,  110. 
curing  defective   acknowledgments   and   certificates,   1016-1068. 
how  made  and  taken  under  the  various  laws,  68-106. 
under  what  law  should  be  taken,  68. 
prior  to  December  20,   1836,   69. 
act  of  December  20,  1836,  70-82. 
act  of  January  19,  1839,  required  certificate,  83. 
act  of  February  5,  1840 — what  certificate  required,  84. 
acknowledgment  before  two  justices  of  the  peace,  85. 
repealed  when,  86. 
act  of  February  5,  1841,  87,  88. 

validates  want  of  authority,  87. 
acknowledgment  and  proof  certified,  88. 
act  of  May  8,  1846 — commissioners  of  deeds,  89,  90. 
act  of  May  12,  1846,  91-94. 

acknowledgment  taken  how,  91,  92. 
if  grantor  or  witness  unknown,  proofs  made,   93. 
substantial    compliance    only    required,    94. 
acts  of  April  6,  1861,  and  January  14,  1862 — seals  of  railway 

company  sufficient  authentication,  95. 
act  of  March  6,  1863— handwriting,  96. 
act  of  November  13,  1866— seal,  97. 
constitution    of    1875 — errors,    98. 
Revised  Statutes  of  1879  and   1895,  99-104. 
single    acknowledgments   how   made,   99. 
identity,   100. 
certificate,  101. 
form  of  certificate,  102. 
of  married  women — how  taken,  103. 
form  of  certificate,  104. 
proof  of  handwriting,  455-470. 

act  of  December  20,  1836 — handwriting  of  whom,  455,  456. 

admissible  in  evidence  but  not  of  record,  457. 
act  of  January  19,  1839.  458. 
act  of  January  18,  1840 — statute  of  frauds,  459. 


INDEX.  495 

STATUTORY    EXACTMEXTS    (Continued), 
act  of  February  5,   1840,  460. 
act  of  February  5,  1841,  461. 
act  of  May  12,  1846,  462. 

sufficient  proof,  463. 
act  of  February  9,  1860,  464. 
act  of  March  6,  1863,  465. 

sufficient  proof  under  this  act,  466. 
Eevised  Statutes  of  1879  and  1895,  467. 

handwriting   of   grantor    and    one     subscribing    witness 
proved,  467. 

facts  must  be  proven,  468. 

signature  by  mark — proof  how  made,  469. 

proof  made  by  whom,  470. 
proof  by  witnesses. 

decree  of  April  18,  1834,  409. 
act  of  December  20,  1836,  410. 

chief  justices  authorized  to  take  proof,  410. 

clerk  authorized  to  record  on  proof  by  one  witness,  411. 

proof  by  two  witnesses  or  handwriting  of  one,  412. 

when  certificate  required,  413. 
act  of  January  19,  1839 — required  certificate,  414. 
act  of  January  18,  1840 — statute  of  frauds,  415. 
act  of  February  '5,  1840 — two  witnesses — certificate,  416. 
act  of  February  5,  1841 — validates,  417. 

certificate  and  proof,  418. 
act  of  May  8,  1846 — commissioners  of  deeds,  419. 
act  of  May  12,  1846 — proof  and  acknowledgment,  how  made, 
420. 

handwriting  proved,  421. 

grantor  unknown,  422. 

certificate  attested,  423. 

presumption    where    no    certificate  of    proof  of  identity, 
424. 

no  form  prescribed,  425. 
act  of  February  9,  1860 — validates,  426. 
acts  of  1861,  1862,  1866  and  1871,  427. 
act  of  1863 — where  grantor  makes  his  mark,  428. 
act  of  August  13,  1870— validates,  429. 

act  of  May  19,  1871 — interest  not  disqualifying  witness,  430. 
act  of  April  27,  1874 — validates,  431. 

Eevised   Statutes  1879   and   1895 — proof  by  subscribing  wit- 
nesses, 432. 
grantor  known  or  proven,  433. 

prior  to  Eevised  Statutes  1879,  434. 

form  of  certificate,  435. 

proof  of  handwriting,  436. 


496  INDEX. 

STATUTORY    ENACTMENTS    (Continued), 
facts  to  be  proven,  437. 
where  instrument  signed  by  mark,  438. 
number  of  witnesses,  439. 
seals. 

act  of  December  20,  1836 — seal  of  county  court,  503. 

act  of  November  16,  1837 — notaries  shall  use  seal,  504. 

act  of  February  5,  1840 — use  of  seal  required,  505. 

act  of  February  3,  1841 — use  of  seal  required,  506. 

act  of  February  5,  1841 — use  of  seal  required,  507. 

act  of  January  10,  1845 — notarial  seal,  508. 

act  of  April  29,  1846 — ^use  of  seal  required,  509. 

act  of  April   30,   1846^ — judges   and   notaries  to   attach  seals, 

510. 
act  of  May  8,  1846 — commissioners  of  deeds  to  use  seals,  511. 
act  of  May  11,  1846^ — seal  of  district  court,  512. 
act  of'  May  13,  1846 — notarial  seals,  513. 
act  of  May  12,  1846 — seals  of  county  court,  514. 
act  of  May  13,  1846 — seals  of  county  court,  515. 
act  of  March  16,  1848 — seals  of  county  court,  516. 
act  of  November  24,  1851 — validates  seal  used  by  Galveston 

county  court,  517. 
acts  of  April  6,  1861,  and  January  14,  1862 — use  of  seals  re- 
quired, 518. 
act  of  December  31,  1861 — seals  of  commissioners  of  deeds, 

519. 
all  subsequent  acts  required  the  use  of  seals,  520. 
act  of  June  16,  1876 — seal  of  county  court,  521. 
act  of  June  24,  1876 — seals  of  notaries,  522. 
act  of  August  18,  1876 — seals  of  county  court,  523. 
act  of  April  18,  1879— validated  certain  notarial  seals,  524. 
act  of  March  18,  1881 — validated  certain  notarial  seals,  525. 
act  of  April  1,  1881 — notarial  seals,  526. 
act  of  April  5,  1889 — validates  certain  notarial  seals,  527. 
for  necessity  of  seals  prior  to  December  20,  1836,  see  ante, 
3   (d). 
stamps. 

stamp  laws  of  Spain,  Mexico  and  Texas,  1079-1087. 
stamp  laws  prior  to  decree  of  1823,  1079. 
decree   of    October    6,    1823 — seals   or   stamps    and   their 

value   and  use,   1080. 
order  of  June  22,  1824 — form  of  stamps,  1081. 
decree  of  October  2,  1824 — form  of  stamps,  1082. 
decree  of  March  24,  1825 — new  settlers  exempt,  1083. 
instructions  of  May  31,  1827 — record-book  to  be  stamped, 
1084. 


INDEX.  497 

STATUTOEY    ENACTMENTS    (Continued). 

instructions    of    September    4,    1827 — record-book    to    be 

stamped,  1085. 
decree  of  February  9,  1828 — new  settlers    exempt,  1086. 
ordinance    of    November   13,    1835 — use    of   stamps  abol- 
ished, 1087. 
stamp  laws  of  United  States,  1088-1093. 
act  of  1864  and  1866,  1088. 

act   of  June   13,   18981 — stamps — how   attached    and  can- 
celed— efPect,  1089. 

provision  that  deeds  are  not  admissible  in  evidence 

or  of  record    unless  stamped,  1090. 
kinds  of  stamps,  1091. 
exemptions,  1092. 
schedule  A — stamp  laws,  1093. 
STATUTORY    CONSTRUCTION,    107-110. 
STATUTE  OF  FRAUDS  required  conveyances  of  lands,  etc.,  to  be  in 

writing,   241. 
SUBSCRIBING  WITNESSES.     See  Witnesses. 

SUBSTANTIAL     COMPLIANCE     WITH     STATUTE     ONLY     RE- 
QUIRED,  218,   287. 
SUNDAY,  ACKNOWLEDGMENT  TAKEN  ON,  VALID,  122,  128. 
SUPREME  COURT  PROVIDED  FOR,  8,  10,  14. 

authorized  to  take  acknowledgments,  916-931. 
SURPLUSAGE,  167. 

unnecessary  words  generally,  167. 
unnecessary  words,  168. 

uncanceled  words  in  printed  certificate,  169. 
name  out  of  place,  170. 

TELEPHONE,  ACKNOWLEDGMENTS  THROUGH,  106. 
TERMS  OF  AUTHENTIC  INSTRUMENTS,  3   (e). 
TESTTMONIOS,  2,  23,  32-34,  46,  198-200. 

may  be  made  by  subsequent  officer  having  custody  of  protocol,  34. 

certificate  by  translator  sufficient  when,  41. 
TIME  OF  ACKNOWLEDGMENTS  AND  PROOF. 

may  be  acknowledged  at  any  time  after  execution,  116. 

incomplete  deed  with  authority  to  complete,  117. 

acknowledgment  relates  back  to  execution  of  deed  when,  119. 

wife's  acknowledgment  relates  back  when,  120. 

husband  and  wife  may  acknowledge  deeds  at  different  times,  121. 

on  Sunday  or  legal  holiday,  122,  128. 

acknowledgment  invalid  at  time  made,  123. 

time  of   making   certificate,   126,   127. 

husband  and  wife  may  acknowledge  different  instruments,  244. 

husband  and  wife's  may  be  taken  at  different  times,  270. 
TITLES,  recorded  when,  32. 
32 


498  INDEX. 

TRUSTEE  may  prove  deed  to  himself,  when,  354. 

VALIDATION  OF  ACKNOWLEDGMENTS,  992-1068. 

amended  by  officer  when,  992-994. 

cured  by  grantors,  995-997. 

cured  by  action,  998-1005. 

by  statute,  1006-1013. 

is  defective  acknowledgment  and  certificate  only  validated  by 
acts  of  1841  and  1860,  or  only  want  of  authority  in  the  officer, 
1032-1037,  1000,  1001. 

change  of  law  will  not,  when,  1014. 

validity  of  statutes,  1015. 

constitutionality  of  statutes,  1006,  1003,  1011,  1012. 

officer  interested  party,  1007,  1001. 

certificate  only  can  be  remedied,  when,  1000-1002. 

want  of  acknowledgment  cured  in  case  of  single  person,  1002. 

defective  on  account  of  interest  of  officer  cannot  be,  1001,  1031, 
1037. 

action  barred  by  limitation  when,  1004. 

proved  by  parol  or  circumstantial  evidence,  1005. 

statutes  and  annotations,  1016-1068. 
VARIANCE,  GENERALLY,  149. 

parol  evidence  to  show  identity,  150. 

immaterial  when,  151,  152. 
VENUE,  AS  SHOWN  BY  CERTIFICATE,  ETC.,  130. 

of  authentic  instruments,  3  (e). 

WHO  MAY  MAKE  ACKNOWLEDGMENTS. 

generally,  544. 
officer's  deputy,  545. 
law  elsewhere,  546. 
agent  or  attorney,  547. 

attorney  of  married  woman,  548. 
firm  as  attorney  in  fact,  549. 

irregular  certificate  of  attorney's  acknowledgment,  550. 
partners,  551. 

either  party  may  acknowledge  in  firm  name,  552. 

corporations,  553. 

railway  corporations — no  acknowledgment  required  when,  558. 

acknowledgment  required  after  1871,  559. 
married  wom^en — husband  must  join,  560. 
held  that  it  must  be  acknowledged  by  husband  also,  561. 
husband's  acknowledgment  not  necessary,  562. 
acknowledgment  need  not  be  at  same  time,  563. 
abandoned  by  husband,  564. 
husband  insane,  565. 
as  agent,  566. 


INDEX.  499 

WHO  MAY  MAKE  ACKNOWiLEDGMENTS   (Continued) . 

wife  must  authorize  husband  to  act  for  her,  567. 

married  women  can  convey  by  attorney,  568. 
wife's  executory  contracts,  569,  570. 

special  commissioner,  571. 

judge  of  first  instance,  572. 
WHO   MAY  TAKE  ACKNOWLEDGMENTS  AND  PEOOF. 
generally,  573-595. 

interest  disqualifies,  573. 

stockholder  of  corporation,  574. 

officer  of  corporation,  575. 

commission  as  trustee,  576. 

preferred  creditor,  577. 

deputy  of  interested  party,  578. 

agent  or  attorney,  '579,  580. 

by  partner  of  grantee,  581. 

relationship,  582. 

husband  of  grantee,  583. 

attesting  witnesses,  584. 

de  facto  officers,  585. 

ex-officio   officers,   586. 

deputies,   587-592. 

presumptions  as  to  authority,  593. 

judicial  knowledge  of  authority  of  officers,  594. 

extraterritorial  authority,  595. 
statutes  and  annotations  generally,  596-717. 
within  the  state,  768-991. 

notaries  public,   768-824a. 

justices  of  the  peace,  825-851. 

county  judges,  etc.,  852-894. 

district  judges,  895-915. 

supreme  judges,  916-931. 

federal  judges,  932-936. 

chief  and  associate  justices  of  the  county  court,  852-894. 

county  commissioners,   852,   894. 

county   clerks,   their   deputies   and   pro   tem.   clerks,   937-980. 

district  clerks  and  deputies,  981-991. 
without  the  state  and  within  the  United  States,  718-755. 
without  the  United  States,  756-767. 
WIFE  ABANDONED  BY  HUSBAND  OR  HE  INSANE,  564,  565. 
may  not  authorize  husband  to  act  for  her,  567. 
may  convey  by  attorney,  568. 
executory  contracts,  569. 
WIFK'S     ACKNOWLEDGMENT.     Sec    Acknowledgments    of    Mar- 
ried Women. 
WITHOUT  THE  STATIv.     See  Acknowledgment  and  Proof  Without 
the  State. 


500  INDEX. 

WHO  MAY  TAKE  THE  PROOF  OF  DEEDS,  ETC.,  376,  377. 
WITNESSES.     See  Ptoof  by  Witnesses. 
necessity  of  prior  to  1836,  350-353. 
witnessed  by  notaries,  352. 
under  colonization  laws,  353. 
necessity  of  subsequent  to  1836,  354-356. 
married  woman's  deed  cannot  be  proved  by,  355,  275. 
assisting,  350,  3   (f),  353. 

attesting  witnesses  may  take  acknowledgments,  584,  354. 
instrumental,  3  (f),  219,  353. 
subscribing,  required  when,  43-48,  354. 
judge  as,  360. 

officer  not  competent  as  witness  without  accounting  for  wit- 
ness' absence,  362. 
must  be  produced  if  possible,  363. 

number  of  witnesses  required,  384,  439,  409-432,  455-467. 
sole  witness  sufficient  when,  364. 
signs  by  making  his  mark,  365. 
signed  at  request  of  grantor,  367-373. 
means  of  knowledge  stated,  369-373. 
must  see  grantor  sign,  or  hear  him  acknowledge  and  request 

witness  to  sign,  367-373. 
saw  firm  name  signed,  373. 

where  there  are  no  subscribing  witnesses,  379-384. 
where  they  are  incompetent,  390. 
who  may  be,  385-391. 

interest  disqualifies  when,   387-389. 
must  be  known  to  officer,  392-394. 
volunteer  witness,   391,   378,   379. 
need  not  swear  he  was  subscribing  witness,  398. 
grantor's   selection,   391. 
certificate  of  proof,  393-408. 

must  show  that  witness  was  known,  393,  394. 

that  witness  was  sworn,  395. 

that  witness  saw  execution,  or    heard    acknowledgment 

and  was  requested  to  sign,  396,  397. 
where  his  name  appears  it  is  not  necessary  for  witness 

to  certify  that  he  was  a  subscribing  witness,  398. 
alternative  certificate  defective,  399. 
irregular  certificate,  400,  405. 
official  character,  401. 
seal  must  be  attached,  402. 
signature,  403. 

purposes  and  considerations,  404. 
other  requirements,  406. 

forms  of  certificate,  435,  453,  454,  407,  409-435,  455-470. 
substantial  compliance  with  statute  only  required,  408. 


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